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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

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nil.     Wir.lIli'.W     <  nMMu.WN  I.Al.lll 


TllK    AMKi:i(  AN    (  ( ).M  MnN  W  KA  LTl  1 


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THE 

AMERICAN   C03I3IOXWEALTII 


BY 


JAMES    BRYCEv        .^   Brycc 

AUTHOR    or     ••THE    IKJLY    ROMAN    KMPIKL" 
M.P.     KOR    ABERIJKEX 


IN  TWO  VOLUMES 

VOL.  I 
TiiK  National  Goverxmem  —  The  State  Govekxmexts 


THIRD    EDITION 

COMPLETELY    REVISED    THROUGHOUT 
(,4^sth   Thousand) 


MACMILLAN    AND    CO. 

and     LONDON 

1893 

Ah  rights  reserved 


T 
38434oL 

1893 


Copyright,  1893, 
By  MACMILLAN  AND  CO. 


ISTorbJooti  ytcss: 

J.  S.  Gushing  &  Co.  — Berwick  &  Smith. 

Boston,  Mass.,  U.S.A. 


3t- 

w 


(To  mu  iFricntis  aiili  Colleagues 

ALBERT    VENN    DICEY 
THOMAS   ERSKINE    HOLLAND 


^SSIGS 


PREFACE 

As  the  introductory  chapter  of  this  work  contains  such 
exphmations  as  seem  needed  of  its  scope  and  plan,  the 
Author  has  little  to  do  in  this  place  except  express  his 
thanks  to  the  numerous  friends  who  have  helped  him  with 
facts,  opinions,  and  criticisms,  or  by  the  gift  of  books  or 
pamphlets.  Among  these  he  is  especially  indebted  to 
the  Hon.  Thomas  M.  Cooley,  now  Chairman  of  the  Inter- 
State  Commerce  Commission  in  Washington ;  Mr.  James  B. 
Thayer  of  the  Harvard  Law  School,  Cambridge,  Mass. ;  Hon. 
Seth  Low,  formerly  Mayor  of  Brooklyn  ;  Mr.  E.  L.  Godkin 
of  New  York  ;  Mr.  Theodore  Roosevelt  of  New  York  ;  Mr. 
G.  Bradford  of  Cambridge,  Mass. ;  and  Mr.  Theodore  Bacon 
of  Rochester,  N.Y. ;  by  one  or  other  of  whom  the  greater 
part  of  the  proofs  of  these  volumes  have  been  read.  He 
has  also  received  valuable  aid  from  Mr.  Justice  Holmes 
of  the  Supreme  Court  of  Massachusetts;  Mr.  Theodore 
D wight,  late  Librarian  of  the  State  Department  at  Wash- 
ington ;  Mr.  H.  Villard  of  New  York ;  Dr.  Albert  Shaw 
of  Minneapolis ;  Mr.  Jesse  Macy  of  Grinnell,  la. ;  Mr. 
Simeon  Baldwin  and  Dr.  George  P.  Fisher  of  New  Haven, 
Conn.;  Mr.  Henry  C.  Lea  of  Philadelphia;  Col.  T.  W. 
Higginson  of  Cambridge,  Mass. ;  Mr.  Bernard  Moses  of 
Berkeley,  Cal. ;  Mr.  A.  B.  Houghton  of  Corning,  N.Y. ; 
Mr.  John  Hay  of  Washington ;  Mr.  Henry  Hitchcock  of 


viii  PREFACE 

St.  Louis,  Mo. ;  President  James  B.  Aiigell  of  Ann  Arbor, 
Mich.;  Hon.  Andrew  D.  White  of  Syracuse,  N.Y. ;  Mr. 
Frank  J.  Goodnow  and  Mr.  Edward  P.  Clark  of  New 
York ;  Dr.  Atherton  of  the  State  College,  Pennsylvania ; 
and  the  authorities  of  the  U.S.  Bureau  of  Education.  No 
one  of  these  gentlemen  is,  however,  responsible  for  any  of 
the  facts  stated  or  views  expressed  in  the  book. 

The  Author  is  further  indebted  to  Mr.  Low  for  a  chapter 
written  by  him,  which  contains  matter  of  much  interest 
relating  to  municipal  government  and  politics. 

He  gladly  takes  this  opportunity  of  thanking  for  their 
aid  and  counsel  four  English  friends :  Mr.  Henry  Sidg- 
wick,  who  has  read  most  of  the  proofs  with  great  care  and 
made  valuable  suggestions  upon  them ;  the  Rev.  Stopford 
A.  Brooke,  whose  literary  criticisms  have  been  very  help- 
ful; Mr.  Albert  V.  Dicey,  and  Mr.  W.  Robertson  Smith. 

He  is  aware  that,  notwithstanding  the  assistance  rendered 
by  friends  in  America,  he  must  have  fallen  into  not  a  few 
errors,  and  without  asking  to  be  excused  for  these,  he 
desires  to  plead  in  extenuation  that  the  book  has  been 
written  under  the  constant  pressure  of  public  duties  as 
well  as  of  other  private  work,  and  that  the  difficulty  of 
obtaining  in  Europe  correct  information  regarding  the 
constitutions  and  laws  of  American  States  and  the  rules 
of  party  organizations  is  very  great. 

When  the  book  was  begun,  it  was  intended  to  contain  a 
study  of  the  more  salient  social  and  intellectual  phenomena 
of  contemporary  America,  together  with  descriptions  of 
the  scenery  and  aspects  of  nature  and  human  nature  in 
the  West,  all  of  whose  States  and  Territories  the  Author 
has  visited.     But  as  the  work  advanced,  he  found  that  to 


PREFACE  ix 

cany  out  this  plan  it  would  be  necessary  either  unduly  to 
curtail  the  account  of  the  government  and  politics  of  the 
United  States,  or  else  to  extend  the  book  to  a  still  greater 
length  than  that  which,  much  to  his  regret,  it  has  now 
reached.  He  therefore  reluctantly  abandoned  the  hope  of 
describing  in  these  volumes  the  scenery  and  life  of  the 
West.  As  regards  the  non-political  topics  which  were  to 
have  been  dealt  with,  he  has  selected  for  discussion  in  the 
concluding  chapters  those  of  them  which  either  were 
comparatively  unfamiliar  to  European  readers,  or  seemed 
specially  calculated  to  throw  light  on  the  political  life  of 
the  country,  and  to  complete  the  picture  which  he  has 
sought  to  draw  of  the  American  Commonwealth  as  a  whole. 

October  22,  1888, 


NOTE   TO   THE   THIRD   EDITION 

This  edition  has  been  carefully  revised  throughout, 
difficult  and  controverted  points  have  been  reconsidered, 
many  statements  have  been  qualified  or  added  to,  the  con- 
stitutional changes  in  the  States  since  1889  have  been 
noted,  and  the  figures  of  population  have  been  corrected 
by  the  census  returns  of  1890. 

The  Author  gladly  takes  this  opportunity  of  thanking 
those  in  America,  many  of  them  previously  unknown  to 
him,  who  have  sent  him  letters  calling  attention  to  state- 
ments which  they  consider  doubtful  or  erroneous.  He  has 
also  to  acknowledge  help  received  not  only  from  some  of 
those  mentioned  in  the  former  preface,  but  from  many 
others  also,  especially  from    President  Eliot  of   Harvard 


PREFACE 


University,  Senator  H.  C.  Lodge,  Representatives  W.  L. 
Wilson  and  W.  C.  Breckinridge,  Professors  Anson  D. 
Morse,  J.  B.  Mc Master,  and  A.  B.  Hart,  Messrs.  Alfred 
Russell,  Charles  F.  Adams,  Amasa  M.  Eaton,  T.  N,  Brown, 
J.  B.  Bishop,  F.  T.  Stimson,  L.  N.  Dembitz,  E.  T.  McDer- 
mott,  V.  M.  Francis,  Dr.  Washington  Gladden,  and  the 
Secretaries  of  State  of  the  six  new  States,  as  well  as  from 
Mr.  J.  G,  Bourinot  of  Ottawa,  Canada. 

Nor  can  he  let  pass  this  opportunity  of  expressing  his 
warm  and  grateful  sense  of  the  kindness  with  which  his 
efforts  to  set  forth  the  political  and  social  phenomena  of 
the  United  States  have  been  received  in  that  country. 

February  26,  1893. 


CONTENTS 


VOL.    I 


List  of  Presidevts 

Akea,  Population,  and  Date  of  Admission  of  the  States    . 
Dates  of  some  Kemaukable   Events  in  the  History  of  the 
North  American  Colonies  and  United  States 

CHAP. 

I.  Introductoky 


page 
xiv 

XV 


PART   I  —  The  National  Government 


II.  The  Nation  and  the  States 

III.  The  Origin  of  the  Constitution 

IV.  Nature  of  the  Federal  Government     . 
V.  The  President    .         .         .         .         . 

VI.  Presidential  Powers  and  Duties    . 
VII.  Observations  on  the  Presidency     . 
VIII.  Why  Great  Men  are  not  chosen  Presidents 
IX.  The  Cabinet        ...... 

X.  The  Senate 

XI.  The  Senate  as  an   Execitive  and  Judiciai 
XII.  The  Senate  :    Its  Working  and  Influence 

XIII.  The  House  of  Representatives 

XIV.  The  House  at  Work         .... 
XV.  The  Committees  of  Congress  . 

XVI.   Congressional  Legislation 
XVII.   Congressional  Finance     .... 
xviii.  The  Relations  of  the  Two  Houses 


Body 


15 

19 

32 

38 

53 

70 

78 

86 

97 

106 

111 

124 

142 

154 

165 

174 

183 


CONTENTS 


CHAP. 

XIX.  General  Observations  on  Congress    . 
XX.  The  Relations  of  Congress  to  the  President 
XXI.  The  Legislature  and  the  Executive 
XXII.  The  Federal  Courts    ...... 

xxiiL  The  Courts  and  the  Constitution 

XXIV.  The  Working  of  the  Courts       .... 

XXV.  Comparison  of  the  American  and  European  Systems, 

xxvi.  General  Observations  on   the  Frame   of  National 

Government  ........ 

xxvii.  The  Federal  System 

xxviiL  Working  Relations  of  the  National  and  the  State 
Governments   ........ 

XXIX.  Criticism  of  the  Federal  System       .         .         .         . 

XXX.  Merits  of  the  Federal  System  .         .         .         . 

XXXI.  Growth  and  Development  of  the  Constitution 
xxxiL  The  Amendment  of  the  Constitution 
XXXIII.  The  Interpretation  of  the  Constitution  . 
xxxiv.  The  Development  of  the  Constitution  gy  Usage    . 
XXXV.  The  Results  of  Constitutional  Development 


PAGE 

18!) 
208 
215 
228 
241 
261 
277 

298 
312 

325 
342 
350 
359 
364 
372 
301 
400 


PART  II  —  The  State  Governments 


ernments 


xxxvi.  Nature  of  the  American  State 
XXXVII.  State  Constitutions      ..... 
XXXVIII.  The  Development  of  State  Constitutions 
XXXIX.  Direct  Legislation  by  the  People     . 
XL.  State  Legislatures 
xLi.  The  State  Executive   . 
xLii.  The  State  Judiciary     . 
XLiii.  State  Finance 
XLiv.  The  Working  of  State  Gov] 
XLV.  Remedies  for  the  Faults  of  State  Governments 

XLvi.  State  Politics .* 

XLVii.  The  Territories 

XLViii.  Local  Government 

XLix.  Observations  on  Rural  Local  Government 
L.  The  Government  of  Cities  ..... 
LI.  The  Working  of  City  Governments  . 
Lii.  An   American   View   of   Municipal    Government   i 
the  United  States 


411 
427 
450 
463 
477 
494 
501 
512 
528 
549 
565 
578 
589 
611 
622 
635 

050 


CONTENTS 


APPENDIX 

On  CoNSTiTUTioyAL  Conventions  ...... 

What  the  Federal  Constitution  owes  to  thi:  State  Con- 
stitutions         

Extracts  from  the  Riles  of  the  Senate 

Private  Bills  

The  Lobby     ........ 

The  Federal  System  of  the  English  Universities 

Constitution  of  the  Confederate  States,  1861-05 

The  Federal  Constitution  of  Canada 

The  Dartmouth  College  Case  .... 

Specimens  of  Provisions  in  State  Constitutions  limitixc 
Taxing  and  Borrowing  Powers 

ARticLES  OF  Confederation,  1781-88 

Constitution  of  the  United  States  . 

Extracts  from  the  Constitution  of  the  State  of  Calx 
FORNIA       .......... 


PAGE 

607 

679 
673 
675 
677 
682 
683 
064 
080 

687 
690 
697 

711 


LIST   OF   PRESIDENTS 

1789-1793  George  Washington. 

1793-1797  Ke-elected. 

1797-1801  John  Adams. 

1801-1805  Thomas  Jefferson. 

1805-1809  Re-elected. 

1809-1813  James  Madison. 

1813-1817  Re-elected. 

1817-1821  James  ISIonroe. 

1821-1825  Re-elected. 

1825-1829  John  Quincy  Adams. 

1829-1833  Andrew  Jackson. 

1833-1837  Re-elected. 

1837-1841  Martin  Van  Buren. 

1841-1815  William  Henry  Harrison  (died  1841). 

John  Tyler. 

1845-1849  James  Knox  Polk. 

1849-1853  Zachary  Taylor  (died  1850). 

Millard  Fillmore. 

1853-1857  Franklin  Pierce. 

1857-1861  James  Buchanan. 

1861-1865  Abraham  Lincoln. 
1865-1869  Re-elected  (died  1865). 

Andrew  Johnson. 

1869-1873  Ulysses  S.  Grant. 
1873-1877  Re-elected. 

1877-1881  Rutherford  Birchard  Hayes. 

1881-1885  James  Abram  Garfield  (died  1881). 

Chester  A.  Arthur. 

1885-1889  (Stephen)  Grover  Cleveland. 

1889-1893  Ben.jamin  Harrison. 

1893-  Grover  Cleveland. 


AREA,   POPULATION,   AND    DATE   OF    ADMISSION 
OF    THE    STATES 


The  Thirteen  Origixal  States,  i\  the  order  ix  which  they 
Ratified  the   Coxstitution. 


Ratified  the 

Area  in 

Population 

Constitution. 

square  miles.' 

(1890). 

Delaware  . 

1787 

2,050 

167,871 

Pennsylvania     . 

1787 

45,215 

5,248,574 

New  Jersey 

1787 

7,815 

1,441,017 

Georgia  . 

1788 

59,475 

1,834,366 

Connecticut 

1788 

4,990 

745,861 

Massachusetts    . 

1788 

8,315 

2,233,407 

Maryland 

1788 

12,210 

1,040,431 

South  Carolina  . 

1788 

30,570 

1,147,161 

New  Hampshire 

1788 

9,305 

375,827 

Virginia 

1788 

42,450 

1,648,911 

New  York 

1788 

49,170 

5,981,934 

North  Carolina  . 

1789 

52,250 

1,617,340 

Rhode  Island     . 

1790 

1,250 

345,343 

States   subsequently   admitted,  in  the  order  of  their  Admission. 


Vermont 

1791 

9,565 

332,205 

Kentucky 

1792 

40,400 

1,855,436 

Tennessee 

1790 

42,050 

1,763,723 

Ohio 

1803 

41,060 

3,666,719 

Louisiana 

1812 

48,720 

1,110,828 

Indiana  . 

1816 

36,350 

2,189,030 

Mississippi 

1817 

46,810 

1,284,887 

Illinois  . 

1818 

56,650 

3,818,536 

Alabama 

1819 

52,250 

1,508,073 

'  According  to  census  returns  of  1890. 


AEEA,    POPULATION,   ETC. 


Area  in 

Population 

Admitted. 

square  miles. 

(1890). 

Maine  . 

1820 

33,040 

660,261 

Missouri 

1821 

69,415 

2,677,080 

Arkansas     . 

1836 

53,850 

1,125,385 

Michigan 

1837 

58,915 

2,089,792 

Florida 

1845 

58,680 

390,435 

Texas  . 

1845 

265,780 

2,232,220 

Iowa   . 

1846 

56,025 

1,906,729 

Wisconsin    . 

1848 

56,040 

1,683,697 

California    . 

1850 

158,360 

1,204,002 

Minnesota   . 

1858 

83,365 

1,300,017 

Oregon 

1859 

96,030 

312,490 

Kansas 

1861 

82,080 

1,423,485 

W.  Virginia 

1863 

24,780 

760,448 

Nevada 

1864 

110,700 

44,327 

Nebraska     . 

1867 

77,510 

1.056,793 

Colorado 

1876 

103,925 

410,975 

N.  Dakota   . 

1889 

70,795 

182,425 

S.  Dakota   . 

1889 

77,650 

327,848 

]\Iontana 

1889 

146,080 

131,769 

Washington 

1889 

69,180 

349,516 

Wyoming    . 

1890 

97,890 

60,589 

Idaho  .        .        .        . 

1890 

84,800 

84,229 

THE   TERRITORIES 


Utah 

New  Mexico 
Arizona    . 
Oklahoma 


Area. 

Population  in  1890 

84,970 

206,498 

122,580 

144,862 

113,020 

59,691 

39,030 

61,701 

Dates  of  some   Remarkable  Events   ix   the  Histoisy  of 
THE  North  American  Colonies  and  United  States 

1G06  First  Charter  of  Virginia. 

1607  First  Settlement  in  Virginia. 

1620  First  Settlement  in  Massachusetts. 

1664  Taking  of  New  Amsterdam  (New  York). 

1759  Battle  of  Heights  of  Abraham  and  taking  of  Qixebec. 

1775  Beginning  of  the  Kevolutionary  War. 

1776  Declaration  of  Independence. 
1781  Formation  of  the  Confederation. 

1783  Independence  of  United  States  recognized. 

1787  Constitutional  Convention  at  Philadelphia. 

1788  The  Constitution  ratified  by  Nine  States. 
1781)  Beginning  of  ihe  Federal  Government. 
1793  Invention  of  the  Cotton  Gin. 

1803        Purchase  of  Louisiana  from  France. 
1812-14  War  with  England. 
1812-15  Disappearance  of  the  Federalist  Party. 
1819        Purchase  of  Florida  from  Spain. 

1819  Steamers  begin  to  cross  the  Atlantic. 

1820  The  ^lissouri  Compromise. 
1828-32  Formation  of  the  Whig  Party. 
1830        First  Passenger  Kailway  opened. 

1840        National  Nominating  Conventions  regularly  established. 

1844  First  Electric  Telegraph  in  operation. 

1845  Admission  of  Texas  to  the  Union. 
1846-48  Mexican  War  and  Cession  of  California. 
1852-56  Fall  of  the  Whig  Party 

1854-56  Formation  of  the  Republican  Party. 

1857        Dred  Scott  decision  delivered. 

1861-65  War  of  Secession. 

1869        Fii'st  Trans-Continental  Railway  completed. 

1877         Final  withdrawal  of  Federal  troops  from  the  South. 

1879        Specie  Payments  resumed. 


CHAPTEE   I 

address^  " 

cvvry  '•■ 

nair  "  ji 

thti.   _:  ._       _  - 

Ajmena  aoiy  ibat  he  is  • 
not  mqiuTP  ~  r~ 

▼levs  on  t:  - 

TfaKaiMt  zaxi 

eaShr  tW  reasosi  of  tike  ■  ?_     T3ae  iiistitntioais 

of  Uie  Unilbed  Sti-  -     -  .  _  .  .    _  — ^ 

to  r  ►-  "      •?* 


of  tlie  not  I'e 
are  siip|M)6eii 

are  suppose-  _  a  syiL:  .e  oi  being 

stodied '"  -   --.  -  -     _  _.-  ^gg 


lepiese:!" 
ascale- 

is  caaeersuffd  to  Trax-;-i_ 


Z  T^hipnr  c 


VOl-l 


THE    UNITED   STATES 


United  States,  and  the  splendour  of  the  part  reserved  for  them 
in  the  development  of  civilization.  But  such  men,  unless  they 
have  themselves  crossed  the  Atlantic,  have  seldom  either  exact 
or  correct  ideas  regarding  the  phenomena  of  the  New  World. 
The  social  and  political  experiments  of  America  constantly 
cited  in  Europe  both  as  patterns  and  as  warnings  are  hardly 
ever  cited  with  due  knowledge  of  the  facts,  much  less  with 
comprehension  of  what  they  teach;  and  where  premises  are 
misunderstood  inferences  must  be  unsound. 

It  is  such  a  feeling  as  this,  a  sense  of  the  immense  curiosity 
of  Europe  regarding  the  social  and  political  life  of  America, 
and  of  the  incomparable  significance  of  American  experience, 
that  has  led  and  will  lead  so  many  travellers  to  record  their 
impressions  of  the  Land  of  the  Future.  Yet  the  very  abun- 
dance of  descriptions  in  existence  seems  to  require  the  author 
of  another  to  justify  himself  for  adding  it  to  the  list. 

I  might  plead  that  America  changes  so  fast  that  every  few 
years  a  new  crop  of  books  is  needed  to  describe  the  new  face 
which  things  have  put  on,  the  new  problems  that  have  appeared, 
the  new  ideas  germinating  among  her  people,  the  new  and 
unexpected  developments  for  evil  as  well  as  for  good  of  which 
her  established  institutions  have  been  found  capable.  I  might 
observe  that  a  new  generation  grows  up  every  few  years  in 
Europe,  which  does  not  read  the  older  books,  because  they  are 
old,  but  may  desire  to  read  a  new  one.  And  if  a  further  reason 
is  asked  for,  let  it  be  found  in  this,  that  during  the  last  fifty 
years  no  author  has  proposed  to  himself  the  aim  of  portraying 
the  whole  political  system  of  the  country  in  its  practice  as  well 
as  its  theory,  of  explaining  not  only  the  National  Government 
but  the  State  Governments,  not  only  the  Constitution  but  the 
party  system,  not  only  the  party  system  but  the  ideas,  temper, 
habits  of  the  sovereign  people.  Much  that  is  valuable  has 
been  written  on  particular  parts  or  aspects  of  the  subject,  but 
no  one  seems  to  have  tried  to  deal  with  it  as  a  whole ;  not  to 
add  that  some  of  the  ablest  writers  have  been  either  advocates, 
often  professed  advocates,  or  detractors  of  democracy. 

To  present  such  a  general  view  of  the  United  States  both  as 
a  Government  and  as  a  Nation  is  the  aim  of  the  present  book. 
But  in  seeking  to  be  comprehensive  it  does  not  attempt  to  be 
exhaustive.     The  effort  to  cover  the  whole  ground  with  equal 


INTKODUCTOHY 


minuteness,  which  a  penetrating  critic  —  the  late  Karl  Hille- 
brand  —  remarked  upon  as  a  characteristic  fault  of  English 
writers,  is  to  be  avoided  not  merely  because  it  wearies  a  reader, 
but  because  it  leads  the  Avriter  to  descant  as  fully  upon  mat- 
ters he  knows  imperfectly  as  upon  those  which  his  own  tastes 
and  knowledge  qualify  him  to  deal  with.  I  shall  endeavour 
to  omit  nothing  which  seems  needed  to  make  the  political  life 
and  the  national  character  and  tendencies  of  the  Americans 
intelligible  to  Europeans,  and  with  this  view  shall  touch  upon 
some  topics  only  distantly  connected  with  government  or  poli- 
tics. But  there  are  also  many  topics,  perhaps  no  more  remote 
from  the  main  subject,  which  I  shall  pass  lightly  over,  either 
because  they  have  been  sufficiently  handled  by  previous  writ- 
ers, or  because  I  have  no  such  minute  acquaintance  with  them 
as  would  make  my  observations  profitable.  For  instance,  the 
common-school  system  of  the  United  States  has  been  so  fre- 
quently and  fully  described  in  many  easily  accessible  books 
that  an  account  of  it  will  not  be  expected  from  me.  But 
American  universities  have  been  generally  neglected  by  Euro- 
pean observers,  and  may  therefore  properly  claim  some  pages. 
The  statistics  of  manufactures,  agriculture,  and  commerce,  the 
systems  of  railway  finance  and  railway  management,  are  full 
of  interest,  but  they  would  need  so  muclj  space  to  be  properly 
set  forth  and  commented  on  that  it  would  be  impossible  to 
bring  them  within  the  present  volumes,  even  had  I  the  special 
skill  and  knowledge  needed  to  distil  from  rows  of  figures  the 
refined  si)irit  of  instruction.  Moreover,  although  an  account  of 
these  facts  might  be  made  to  illustrate  the  features  of  Amer- 
ican civilization,  it  is  not  necessary  to  a  comprehension  of 
American  character.  Observations  on  the  state  of  literature 
and  religion  are  necessary,  and  I  have  therefore  endeavoured 
to  convey  some  idea  of  the  literary  tastes  and  the  religious 
habits  of  the  people,  and  of  the  part  Avhieh  these  play  in  form- 
ing and  colouring  the  whole  life  of  the  country. 

The  book  which  it  might  seem  natural  for  me  to  take  as  a 
model  is  the  Democracy  in  America  of  Alexis  de  Tocqueville. 
It  would  indeed,  apart  from  the  danger  of  provoking  a  com- 
parison with  such  an  admirable  master  of  style,  have  been  an 
interesting  and  useful  task  to  tread  in  his  steps,  and  seek  to 
do  for  the  United  States  of  1888,  with  their  sixty  millions  of 


THE    UNITED   STATES 


people,  what  he  did  for  the  fifteen  millions  of  1832.     But  what 
I  have  actually  tried  to  accomplish  is  something  different,  for  I 
have  conceived  the  subject  upon  quite  other  lines.     To  Tocque- 
ville  America  was  primarily  a  democracy,  the  ideal  democracy, 
fraught  with  lessons  for  Europe,  and  above  all  for  his  own 
France.     What  he  has  given  us  is  not  so  much  a  description  of 
the  country  and  people  as  a  treatise,  full  of  tine  observation  and 
elevated  thinking,  upon  democracy,  a  treatise  whose  conclusions 
are  illustrated  from  America,  but  are  founded,  not  so  much  on 
an  analysis  of  American  phenomena,  as  on  general  and  some- 
what speculative  views  of  democracy  which  the  circumstances 
of  France  had  suggested.     Democratic  government  seems  to 
me,  with  all  deference  to  his  high  authority,  a  cause  not  so 
potent  in  the  moral  and  social  sphere  as  he  deemed  it ;  and 
my  object  has  been  less  to  discuss  its  merits  than  to  paint  the 
institutions  and  people  of  America  as  they  are,  tracing  what  is 
peculiar  in  them  not  merely  to  the  sovereignty  of  the  masses, 
but  also  to  the  history  and  traditions  of  the  race,  to  its  funda- 
mental ideas,  to  its  material  environment.     I  have  striven  to 
avoid  the  temptations  of  the  deductive  method,  and  to  present 
simply  the  facts  of  the  case,  arranging  and  connecting  them  as 
best  I  can,  but  letting  them  speak  for  themselves  rather  than 
pressing  upon  the  reader  my  own  conclusions.     The  longer  any 
one  studies  a  vast  subject,  the  more  cautious  in  inference  does 
he  become.     When  I  first  visited  America  eighteen  years  ago, 
I  brought  home  a  swarm  of  bold  generalizations.     Half  of  them 
were  thrown  overboard  after  a  second  visit  in  1881.     Of  the 
half  that  remained,  some  were  dropped  into  the  Atlantic  when 
I  returned  across  it  after  a  third  visit  in  1883-84  :  and  although 
the  two  later  journeys  gave  birth  to  some  new  views,  these 
views  are  fewer  and  more  discreetly  cautious  than  their  de- 
parted sisters  of  1870.     I  can  honestly  say  that  I  shall  be  bet- 
ter pleased  if  readers  of  a  philosophic  turn  find  in  this  book 
matter  on  which  they  feel  they  can  safely  build  theories  for 
themselves,  than  if  they  take  from  it  theories  ready  made. 

To  have  dealt  with  the  subject  historically  would  have  been 
profitable  as  well  as  pleasant,  for  the  nature  of  institutions  is 
best  understood  when  their  growth  has  been  traced  and  illus- 
trations adduced  of  their  actual  working.  If  I  have  made  only 
a  sparing  use  of  this  method,  it  has  been  from  no  want  of  love 


INTRODUCTORY 


lor  it,  but  because  a  historical  treatment  would  have  seldom 
been  compatible  with  my  chief  aim,  that  of  presenting,  within 
reasonable  compass,  a  full  and  clear  view  of  the  facts  of  to- 
day. American  history,  of  which  Europeans  know  scarcely 
anything,  may  be  wanting  in  colour  and  romance  when  com- 
pared with  the  annals  of  the  great  states  of  the  Old  World ; 
but  it  is  eminently  rich  in  political  instruction.  I  hope  that 
my  American  readers,  who,  if  I  am  not  mistaken,  know  the 
history  of  their  country  better  than  the  English  know  that  of 
England,  will  not  suppose  that  I  have  ignored  this  instruction, 
but  Avill  allow  for  the  omissions  rendered  necessary  by  the 
magnitude  of  the  subject  which  I  am  trying  to  compress  into 
two  volumes.  Similar  reasons  compel  me  to  deal  succinctly 
with  the  legal  aspects  of  the  Constitution ;  but  the  lay  reader 
may  possibly  deem  this  brevity  a  merit. 

Even  when  limited  by  the  exclusion  of  history  and  law,  the 
subject  remains  so  vast  and  complex  as  to  make  needful  some 
explanation  of  the  conception  I  have  formed  of  it,  and  of  the 
plan  upon  which  the  book  has  been  constructed. 

There  are  three  main  things  that  one  wishes  to  know  about 
a  national  commonwealth,  viz.  its  framework  and  constitutional 
machinery,  the  methods  by  which  it  is  worked,  the  forces  which 
move  it  and  direct  its  course.  It  is  natural  to  begin  with  the 
first  of  these.  Accordingly,  I  begin  with  the  government ;  and 
as  the  powers  of  government  are  two-fold,  being  vested  partly 
in  the  National  or  Federal  authorities  and  partly  in  the  States, 
I  begin  with  the  National  government,  whose  structure  presents 
less  difficulty  to  European  minds,  because  it  resembles  the 
national  government  in  each  of  their  own  countries.  Part  I. 
therefore  contains  an  account  of  the  several  Federal  authorities, 
the  President,  Congress,  the  Courts  of  Law.  It  describes  the 
relations  of  the  National  or  central  power  to  the  several  States. 
It  discusses  the  nature  of  the  Constitution  as  a  fundamental 
supreme  law,  and  shows  how  this  stable  and  rigid  instrument 
has  been  in  a  few  points  expressly,  in  many  others  tacitly  and 
half-unconsciously  modified. 

Part  II.  deals  similarly  with  the  State  Governments,  exam- 
ining the  constitutions  that  have  established  them,  the  authori- 
ties which  administer  them,  the  practical  working  of  their 
lesrislative  bodies.     And  as  local  government  is  a  matter  of 


THE   UNITED   STATES 


State  regulation,  there  is  also  given  some  account  of  the  sys- 
tems of  rural  and  city  government  which  have  been  created  in 
the  various  States,  and  which  have,  rural  government  for  its 
merits  and  city  government  for  its  faults,  become  the  theme 
of  copious  discussion  among  students  of  American  institu- 
tions. 

(Part  III.)  The  whole  machinery,  both  of  national  and  of 
State  governments,  is  worked  by  the  political  parties.  Parties 
have  been  organized  far  more  elaborately  in  the  United  States 
than  anywhere  else  in  the  world,  and  have  passed  more  com- 
pletely under  the  control  of  a  professional  class.  The  party 
organizations  in  fact  form  a  second  body  of  political  machinery, 
existing  side  by  side  \vith  that  of  the  legally  constituted  govern- 
ment, and  scarcely  less  complicated.  Politics,  considered  not 
as  the  science  of  government,  but  as  the  art  of  winning  elections 
and  securing  office,  has  reached  in  the  United  States  a  develop- 
ment surpassing  in  elaborateness  that  of  Britain  or  France  as 
much  as  the  methods  of  those  countries  surpass  the  methods  of 
Servia  or  Roumania.  Part  III.  contains  a  sketch  of  this  party 
system,  and  of  the  men  who  '-'run"  it,  topics  -which  deserve  and 
would  repay  a  fuller  examination  than  they  have  yet  received 
even  in  America,  or  than  my  limits  permit  me  to  bestow. 

(Part  IV.)  The  parties,  however,  are  not  the  ultimate  force 
in  the  conduct  of  affairs.  Behind  and  above  them  stands  the 
people.  Public  opinion,  that  is  the  mind  and  conscience  of  the 
whole  nation,  is  the  opinion  of  persons  who  are  included  in 
the  parties,  for  the  parties  taken  together  are  the  nation ;  and 
the  parties,  each  claiming  to  be  its  true  exponent,  seek  to  use  it 
for  their  purposes.  Yet  it  stands  above  the  parties,  being  cooler 
and  larger  minded  than  they  are ;  it  awes  party  leaders  and 
holds  in  check  party  organizations.  No  one  openly  ventures 
to  resist  it.  It  determines  the  direction  and  the  character  of 
national  policy.  It  is  the  product  of  a  greater  number  of 
minds  than  in  any  other  country,  and  it  is  more  indisputably 
sovereign.  It  is  the  central  point  of  the  whole  American 
polity.  To  describe  it,  that  is,  to  sketch  the  leading  political 
ideas,  habits,  and  tendencies  of  the  American  people,  and  show 
how  they  express  themselves  in  action,  is  the  most  difficult  and 
also  tlie  most  vital  part  of  my  task  ;  and  to  this  task  the  twelve 
chapters  of  Part  IV.  are  devoted. 


INTRODUCTORY 


(Part  V.)  As  the  descriptions  given  and  propositions  ad- 
vanced in  treating  of  the  party  system  and  of  public  opinion 
are  necessarily  general,  they  seem  to  need  illustration  by 
instances  drawn  from  recent  American  history.  I  collect  some 
such  instances  in  Part  V.,  and  place  there  a  discussion  of  several 
political  questions  which  lie  outside  party  politics,  together 
with  some  chapters  in  which  the  attempt  is  made  to  estimate 
the  strength  and  Aveakness  of  democratic  government  as  it 
exists  in  the  United  States,  and  to  compare  the  phenomena 
which  it  actually  shows  with  those  which  European  specula- 
tion has  attributed  to  democracy  in  general. 

(Part  VI.)  At  this  point  the  properly  political  sections  of 
the  book  end.  But  there  are  certain  non-political  institutions, 
certain  aspects  of  society,  certain  intellectual  or  spiritual  forces, 
which  count  for  so  much  in  the  total  life  of  the  country,  in  the 
total  impression  whicli  it  makes  and  the  hopes  for  the  future 
whicli  it  raises,  that  they  cannot  be  left  unnoticed.  These,  or 
rather  s\ich  of  them  as  are  of  most  general  interest,  and  have 
been  least  understood  in  Europe,  will  be  found  briefly  treated 
in  Part  VI.  In  the  view  which  I  take  of  them,  they  are  all 
germane,  though  not  all  equally  germane,  to  the  main  subject  of 
the  book,  'which  is  the  character,  temper,  and  tendencies  of  the 
American  nation  as  they  are  expressed,  primarily  in  political 
and  social  institutions,  secondarily  in  literature  and  manners. 

This  plan  involves  some  repetition.  But  an  author  who  finds 
hunself  obliged  to  choose  between  repetition  and  obscurity 
ought  not  to  doubt  as  to  his  choice.  Whenever  it  has  been 
necessary  to  trace  a  phenomenon  to  its  source,  or  to  explain  the 
connection  between  several  phenomena,  I  have  not  hesitated, 
knowing  that  one  must  not  expect  a  reader  to  carry  in  his  mind 
all  that  has  been  told  already,  to  re-state  a  material  fact,  or  re- 
enforce  a  view  which  gives  to  the  facts  what  I  conceive  to  be 
their  true  significance. 

It  may  be  thought  that  a  subject  of  this  great  compass  ought, 
if  undertaken  at  all,  to  be  undertaken  by  a  native  American. 
No  native  American  has,  however,  undertaken  it.  Such  a 
writer  would  doubtless  have  many  advantages  over  a  stranger. 
Yet  there  are  two  advantages  which  a  stranger,  or  at  least  a 
stranger  who  is  also  an  Englishman,  with  some  practical  know- 
ledge of  English  polities  and  English  law,  may  hope  to  secure. 


THE   UNITED   STATES 


He  is  struck  by  certain  things  which  a  native  does  not  think 
of  explaining,  because  they  are  too  obvious ;  and  whose  influ- 
ence on  politics  or  society,  one  to  whom  they  seem  part  of  the 
order  of  nature  forgets  to  estimate.  And  the  stranger  finds  it 
easier  to  maintain  a  position  of  detachment,  detachment  not 
only  from  party  prejudice,  but  from  those  prepossessions  in 
favour  of  persons,  groups,  constitutional  dogmas,  national  pre- 
tensions, which  a  citizen  can  scarcely  escape  except  by  falling 
into  that  attitude  of  impartial  cynicism  which  sours  and  per- 
verts the  historical  mind  as  much  as  prejudice  itself.  He  who 
regards  a  wide  landscape  from  a  distant  height  sees  its  details 
imperfectly,  and  must  unfold  his  map  in  order  to  make  out 
where  each  village  lies,  and  how  the  roads  run  from  point  to 
point.  But  he  catches  the  true  perspective  of  things  better 
than  if  he  were  standing  among  them.  The  great  features  of 
the  landscape,  the  valleys,  slopes,  and  m^ountains,  appear  in 
their  relative  proportion :  he  can  estimate  the  height  of  the 
peaks  and  the  breadth  of  the  plains.  So  one  who  writes  of  a 
country  not  his  own  may  turn  his  want  of  familiarity  with 
details  to  good  account  if  he  fixes  his  mind  strenuously  on  the 
main  characteristics  of  the  people  and  their  institutions,  while 
not  forgetting  to  fill  up  gaps  in  his  knowledge  by  frequent 
reference  to  native  authorities.  My  own  plan  has  been  first  to 
write  down  what  struck  me  as  the  salient  and  dominant  facts, 
and  then  to  test,  by  consulting  American  friends  and  by  a  fur- 
ther study  of  American  books,  the  views  which  I  had  reached. 
To  be  non-partisan,  as  I  trust  to  have  been,  in  describing 
the  politics  of  the  United  States,  is  not  difficult  for  a  European, 
especially  if  he  has  the  good  fortune  to  have  intimate  friends  in 
both  the  great  American  parties.  To  feel  and  show  no  bias  in 
those  graver  and  more  sharply  accentuated  issues  which  divide 
men  in  Europe,  the  issues  between  absolutism,  oligarchy,  and 
democracy;  between  strongly  unified  governments  and  the 
policy  of  decentralization,  this  is  a  harder  task,  yet  a  not  less 
imperative  duty.  This  much  I  can  say,  that  no  fact  has  been 
either  stated  or  suppressed,  and  no  opinion  put  forward,  with 
the  purpose  of  serving  any  English  party-doctrine  or  party-pol- 
icy, or  in  any  way  furnishing  arguments  for  use  in  any  English 
controversy.  The  admirers  and  the  censors  of  popular  govern- 
ment are  equally  likely  to  find  in  the  present  treatise  materials 


INTRODUCTORY 


suited  to  their  wislies ;  and  in  many  cases,  if  I  may  judge  from 
what  has  befallen  some  of  my  predecessors,  they  will  draw  from 
these  materials  conclusions  never  intended  by  the  author. 

Few  things  are  more  difficult  than  to  use  aright  arguments 
founded  on  the  political  experience  of  other  countries.  As  the 
chief  practical  use  of  history  is  to  deliver  us  from  jjlausible 
historical  analogies,  so  a  comj)rehension  of  the  institutions  of 
other  nations  enables  us  to  expose  sometimes  the  ill-grounded 
hopes,  sometimes  the  empty  fears,  which  loose  reports  about  those 
nations  generate.  Direct  inferences  from  the  success  or  failure 
of  a  particular  constitutional  arrangement  or  political  usage  in 
another  country  are  rarely  sound,  because  the  conditions  differ 
in  so  many  respects  that  there  can  be  no  certainty  that  what 
flourishes  or  languishes  under  other  skies  and  in  another  soil 
will  likewise  flourish  or  languish  in  our  own.  Many  an  Ameri- 
can institution  would  bear  different  fruit  if  transplanted  to 
England,  as  there  is  hardly  an  English  institution  which  has 
not  undergone,  like  the  plants  and  animals  of  the  Old  World, 
some  change  in  America.  The  examination  and  appraisement 
of  the  institutions  of  the  United  States  is  no  doubt  full  of 
instruction  for  Europe,  frdl  of  encouragement,  full  of  warning ; 
but  its  chief  value  lies  in  what  may  be  called  the  laws  of  politi- 
cal biology  which  it  reveals,  in  the  new  illustrations  and  en- 
forcements it  supplies  of  general  truths  in  social  and  political 
science,  truths  some  of  which  were  perceived  long  ago  by  Plato 
and  Aristotle,  but  might  have  been  forgotten  had  not  America 
poured  a  stream  of  new  light  upon  them.  Now  and  then  we 
may  directly  claim  transathmtic  experience  as  accrediting  or 
discrediting  some  specific  constitutional  device  or  the  policy  of 
some  enactment.  But  even  in  these  cases  he  who  desires  to 
rely  on  the  results  shown  in  America  must  first  satisfy  himself 
that  there  is  such  a  parity  of  conditions  and  surroundings  in 
respect  to  the  particular  matter  as  justifies  him  in  reasoning 
directly  from  ascertained  results  there  to  probable  results  in 
his  own  country. 

It  is  possible  that  these  pages,  or  at  least  those  of  them 
which  describe  the  party  system,  may  produce  on  European 
readers  an  impression  which  I  neither  intend  nor  desire.  They 
may  set  before  him  a  picture  with  fewer  lights  and  deeper 
shadows  than  I  have  wished  it  to  contain.     Twenty  years  ago 


10 


THE  UNITED   STATES 


I  travelled  in  Iceland  with  two  friends.  We  crossed  the  great 
Desert  by  a  seldom  trodden  track,  encountering,  during  two 
months  of  late  autumn,  rains,  tempests,  snow-storms,  and  other 
hardships  too  numerous  to  recount.  But  the  scenery  was  so 
grand  and  solemn,  the  life  so  novel,  the  character  of  the  people 
so  attractive,  the  historic  and  poetic  traditions  so  inspiring,  that 
we  returned  full  of  delight  with  the  marvellous  isle.  When 
we  expressed  this  enchantment  to  our  English  friends,  we  were 
questioned  about  the  conditions  of  travel,  and  forced  to  admit 
that  we  had  been  frozen  and  starved,  that  we  had  sought  sleep 
in  swamps  or  on  rocks,  that  the  Icelanders  lived  in  huts  scat- 
tered through  a  wilderness,  with  none  of  the  luxuries  and  few 
even  of  the  comforts  of  life.  Our  friends  passed  over  the 
record  of  impressions  to  dwell  on  the  record  of  physical  experi- 
ences, and  conceived  a  notion  of  the  island  totally  different 
from  that  Avhich  we  had  meant  to  convey.  We  perceived  too 
late  how  much  easier  it  is  to  state  tangible  facts  than  to  com- 
municate impressions.  If  I  may  attempt  to  apply  the  analogy 
to  the  United  States  and  their  people,  I  will  say  that  they 
make  on  the  visitor  an  impression  so  strong,  so  deep,  so  fasci- 
nating, so  inwoven  with  a  hundred  threads  of  imagination  and 
emotion,  that  he  cannot  hope  to  reproduce  it  in  words,  and  to 
pass  it  on  undiluted  to  other  minds.  With  the  broad  facts  of 
politics  it  is  otherwise.  These  a  traveller  can  easily  set  forth, 
and  is  bound  in  honesty  to  set  forth,  knowing  that  in  doing  so 
he  must  state  much  that  is  sordid,  much  that  will  provoke 
unfavourable  comment.  The  European  reader  grasps  these 
tangible  facts,  and,  judging  them  as  though  they  existed  under 
European  conditions,  draws  from  them  conclusions  disparaging 
to  the  country  and  the  people.  What  he  probably  fails  to  do, 
because  this  is  what  the  writer  is  most  likely  to  fail  in  enabling 
him  to  do,  is  to  realize  the  existence  in  the  American  people  of 
a  reserve  of  force  and  patriotism  more  than  sufficient  to  sweep 
away  all  the  evils  which  are  now  tolerated,  and  to  make  the 
politics  of  the  country  worthy  of  its  material  grandeur  and  of 
the  private  virtues  of  its  inhabitants.  America  excites  an 
admiration  which  must  be  felt  upon  the  spot  to  be  understood. 
The  hopefulness  of  her  people  communicates  itself  to  one  who 
moves  among  them,  and  makes  him  perceive  that  the  graver 
faults  of  politics  may  be  far  less  dangerous  there  than  they 


INTRODUCTORY  11 


would  be  in  Europe.  A  hundred  times  in  writing  this  book 
liave  I  been  dislieai-tened  by  the  faets  I  was  stating :  a  hundred 
times  has  the  recollection  of  the  abounding  strength  and  vital- 
ity of  the  nation  chased  away  these  tremors. 

There  are  other  risks  to  which  such  a  book  as  this  is  neces- 
sarily exposed.  There  is  the  risk  of  supposing  that  to  be  gen- 
erally true  which  the  writer  has  himself  seen  or  been  told,  and 
the  risk  of  assuming  that  what  is  now  generally  true  is  likely 
to  continue  so.  A'gainst  the  former  of  these  dangers  he  who 
is  forewarned  is  forearmed :  as  to  the  latter  I  can  but  say  that 
whenever  I  have  sought  to  trace  a  phenomenon  to  its  causes  I 
have  also  sought  to  inquire  whether  these  causes  are  likely  to 
be  permanent,  a  question  which  it  is  well  to  ask  even  when  no 
answer  can  be  given.  I  have  attributed  less  to  the  influence 
of  democracy  than  most  of  my  predecessors  have  done,  believ- 
ing that  explanations  drawn  from  a  form  of  government,  being 
easy  and  obvious,  ought  to  be  cautiously  employed.  Some  one 
has  said  that  the  end  of  philosophy  is  to  diminish  the  number 
of  causes,  as  the  aim  of  chemistry  is  to  reduce  that  of  the  ele- 
mental substances.  But  it  is  an  end  not  to  be  hastily  pursued. 
A  close  analysis  of  social  and  politi(;al  phenomena  often  shows 
that  causes  are  more  complex  than  had  at  first  appeared,  and 
that  that  which  had  been  deemed  the  main  cause  is  active  only 
because  some  inconspicuous,  but  not  less  important,  condition 
is  also  present.  The  inquisition  of  the  forces  which  move 
society  is  a  high  matter ;  and  even  where  certainty  is  unattain- 
able it  is  some  service  to  science  to  have  determined  the  facts 
and  correctly  stated  the  problems,  as  Aristotle  remarked  long 
ago  that  the  first  step  in  investigation  is  to  ask  the  right 
questions. 

I  have,  however,  dwelt  long  enough  upon  the  perils  of  the 
voyage :  it  is  now  time  to  put  to  sea.  Let  us  begin  with  a  sur- 
vey of  the  national  government,  examining  its  nature  and 
describing  the  authorities  wdiich  compose  it. 


PART    I 
THE   NATIONAL   GOVERNMENT 


CHAPTER   II 

THE    NATION    AND    THE    STATES 

A  FEW  years  ago  the  American  Protestant  Episcopal  Chnrch 
was  occupied  at  its  triennial  Convention  in  revising  its  liturgy. 
It  Avas  thought  desirable  to  introduce  among  the  short  sentence 
l)rayers  a  priiyer  for  the  whole  people ;  and  ;in  eminent  New 
England  divine  proposed  the  words  ''  0  Lord,  bless  our  nation." 
Accepted  one  afternoon  on  the  spur  of  the  moment,  the  sen- 
tence was  brought  up  next  day  for  reconsideration,  when  so 
many  objections  were  raised  by  the  laity  to  the  word  "nation," 
as  importing  too  detinite  a  recognition  of  national  unity,  that 
it  was  dropped,  and  instead  there  were  adopted  the  words  "  O 
Lord,  bless  these  United  States." 

To  Europeans  who  are  struck  by  the  patriotism  and  demon- 
strative national  pride  of  their  transatlantic  visitors,  this  fear 
of  admitting  that  the  American  people  constitute  a  nation 
seems  extraordinary.  But  it  is  only  the  expression  on  its  sen- 
timental side  of  the  most  striking  and  pervading  characteristic 
of  the  political  system  of  the  country,  the  existence  of  a  double 
government,  a  double  allegiance,  a  double  patriotism.  America 
—  I  call  it  America  (leaving  out  of  sight  South  and  Central 
America,  Canada,  and  ^Mexico),  in  order  to  avoid  using  at  this 
stage  the  term  United  States  —  America  is  a  Commonwealth  of 
commonwealths,  a  Republic  of  republics,  a  State  which,  while 
one,  is  nevertheless  composed  of  other  States  even  more  essen- 
tial to  its  existence  than  it  is  to  theirs. 

This  is  a  point  of  so  much  consequence,  and  so  apt  to  be 
misapprehended  by  Europeans,  that  a  few  sentences  may  be 
given  to  it. 

AVlien  within  a  large  political  community  smaller  communi- 
ties are  found  existing,  the  relation  of  the  smaller  to  the  larger 
usually  appears  in  one  or  other  of  the  two  following  forms. 


16  THE   NATIONAL   GOVERNMENT 


One  form  is  that  of  a  League,  in  which  a  number  of  political 
bodies,  be  they  monarchies  or  republics,  are  bound  together  so 
as  to  constitute  for  certain  purposes,  and  especially  for  the  pur- 
pose of  common  defence,  a  single  body.  The  members  of  such 
a  composite  body  or  league  are  not  individiial  men  but  com- 
munities. It  exists  only  as  an  aggregate  of  communities,  and 
will  therefore  vanish  so  soon  as  the  communities  which  com- 
pose it  separate  themselves  from  one  another.  Moreover  it 
deals  with  and  acts  upon  these  communities  only.  With  the 
individual  citizen  it  has  nothing  to  do,  no  right  of  taxing  him, 
or  judging  him,  or  making  laws  for  him,  for  in  all  these  matters 
it  is  to  his  own  community  that  the  allegiance  of  the  citizen  is 
due.  A  familiar  instance  of  this  form  is  to  be  found  in  the 
Germanic  Confederation  as  it  existed  from  1815  till  18GG.  The 
Hanseatic  League  in  mediaeval  Germany,  the  Swiss  Confedera- 
tion down  till  the  present  century,  are  other  examples. 

In  the  second  form,  the  smaller  communities  are  mere  sub- 
divisions of  that  greater  one  which  we  call  the  Nation.  They 
have  been  created,  or  at  any  rate  they  exist,  for  administrative 
purposes  only.  Such  powers  as  they  possess  are  powers  dele- 
gated by  the  nation,  and  can  be  overridden  by  its  will.  The 
nation  acts  directly  by  its  own  officers,  not  merely  on  the  com- 
munities, but  upon  every  single  citizen ;  and  the  nation,  because 
it  is  independent  of  these  communities,  would  continue  to  exist 
were  they  all  to  disappear.  Examples  of  such  minor  commu- 
nities may  be  found  in  the  departments  of  modern  France  and 
the  counties  of  modern  England.  Some  of  the  English  counties 
were  at  one  time,  like  Kent  or  Dorset,  independent  kingdoms 
or  tribal  districts ;  some,  like  Bedfordshire,  were  artificial 
divisions  from  the  first.  All  are  now  merely  local  administra- 
tive areas,  the  powers  of  whose  local  authorities  have  been 
delegated  from  the  national  government  of  England.  The 
national  government  does  not  stand  by  virtue  of  them,  does 
not  need  them.  They  might  all  be  abolished  or  turned  into 
wholly  different  communities  without  seriously  affecting  its 
structure. 

The  American  Federal  Republic  corresponds  to  neither  of 
these  two  forms,  but  may  be  said  to  stand  between  them.  Its 
central  or  national  government  is  not  a  mere  league,  for  it  does 
not  wholly  depend  on  the  component  communities  which  we 


ciiAi-.  II  THE    NATION   AND   THE    STATES  17 

call  the  States.  It  is  itself  a  conimonwealtli  as  well  as  a  union 
of  commonwealths,  because  't  claims  directly  the  obedience  of 
every  citizen,  and  acts  immediately  upon  hmi  through  its  courts 
and  executive  officers.  Still  less  are  its  minor  communities 
the  States,  mere  subdivisions  of  the  Union,  mere  creatures  of 
the  national  government,  like  the  counties  of  England  or  the 
departments  of  France.  They  have  over  their  citizens  an 
authority  which  is  their  own,  and  not  delegated  by  the  central 
government.  They  have  not  been  called  into  being  by  that 
government.  They  —  that  is,  the  older  ones  among  them  — 
existed  before  it.     They  couhl  exist  without  it. 

The  central  or  national  government  and  the  State  govern- 
ments may  be  compared  to  a  large  building  and  a  set  of  smaller 
buildings  standing  on  the  same  ground,  yet  distinct  from  each 
other.  It  is  a  combination  sometimes  seen  Avhere  a  great  church 
has  been  erected  over  more  ancient  homes  of  Avorship.  First 
the  soil  is  covered  by  a  number  of  small  shrines  and  chapels, 
built  at  different  times  and  in  different  styles  of  architecture, 
each  complete  in  itself.  Then  over  them  and  including  them 
all  in  its  spacious  fabric  there  is  reared  a  new  pile  with  its  own 
loftier  roof,  its  own  walls,  which  may  perhaps  rest  on  and 
incorporate  the  walls  of  the  older  shrines,  its  own  internal  plan.^ 
The  identity  of  the  earlier  buildings  has  however  not  been 
obliterated ;  and  if  the  later  and  larger  structure  were  to  dis- 
appear, a  little  repair  would  enable  them  to  keep  out  wind  and 
weather,  and  be  again  what  tliey  once  were,  distinct  and  sepa- 
rate edifices.  So  the  American  States  are  now  all  inside  the 
Union,  and  have  all  become  subordinate  to  it.  Yet  the  Union 
is  more  than  an  aggregate  of  States,  and  the  States  are  more 
than  parts  of  the  Union.  It  might  be  destroj'ed,  and  they, 
adding  some  further  attributes  of  power  to  those  they  now 
possess,  might  survive  as  independent  self-governing  commu- 
nities. 

This  is  the  cause  of  that  immense  complexity  which  startles 
and  at  first  bewilders  the  student  of  American  institutions,  a 
complexity  which  makes  American  history  and  current  Ameri- 

1  I  do  not  profess  to  indicate  any  one  building  whicli  exactly  corresponds  to 
what  I  have  attempted  to  describe,  but  there  are  (besides  the  Church  of  the 
Holy  Sepulchre  at  Jerusalem)  several  both  in  Italy  and  in  Egypt  that  seem  to 
justify  the  simile. 

VOL.  I  C 


18  THE   NATIONAL   GOVERNMENT 


can  politics  difficult  to  the  European,  who  finds  in  them  phe- 
nomena to  which  his  own  experience  supplies  no  parallel. 
There  are  two  loyalties,  two  patriotisms ;  and  the  lesser  patriot- 
ism, as  the  incident  in  the  Episcopal  Convention  shows,  is  jeal- 
ous of  the  greater.  There  are  two  governments,  covering  the 
same  ground,  commanding,  with  equally  direct  authority,  the 
obedience  of  the  same  citizen. 

The  casual  reader  of  American  political  intelligence  in  Euro- 
pean newspapers  is  not  struck  by  this  phenomenon,  because 
State  politics  and  State  affairs  generally  are  seldom  noticed  in 
Europe.  Even  the  traveller  who  visits  America  does  not 
realize  its  importance,  because  the  things  that  meet  his  eye  are 
superficially  similar  all  over  the  continent,  and  that  which 
Europeans  call  the  machinery  of  government  is  in  America  con- 
spicuous chiefly  by  its  absence.  But  a  due  comprehension  of 
this  double  organization  is  the  first  and  indispensable  step  to 
the  comprehension  of  American  institutions  :  as  the  elaborate 
devices  whereby  the  two  systems  of  government  are  kept  from 
clashing  are  the  most  curious  subject  of  study  which  those  in- 
stitutions present. 

How  did  so  complex  a  system  arise,  and  what  influences 
have  moulded  it  into  its  present  form  ?  This  is  a  question 
which  cannot  be  answered  without  a  few  words  of  historical 
retrospect.  I  am  anxious  not  to  stray  far  into  history,  because 
the  task  of  describing  American  institutions  as  they  now  exist 
is  more  than  sufficiently  heavy  for  one  writer  and  one  book.  But 
a  brief  and  plain  outline  of  the  events  which  gave  birth  to  the 
Federal  system  in  America,  and  which  have  nurtured  national 
feeling  without  extinguishing  State  feeling,  seems  the  most 
natural  introduction  to  an  account  of  the  present  Constitution, 
and  may  dispense  with  the  need  for  subsequent  explanations 
and  digressions. 


CHAPTER    III 

THE    ORIGIN    OF    THE   CONSTITUTION 

When  in  the  reign  of  George  III.  troubles  arose  between 
England  and  her  North  American  colonists,  there  existed  along 
the  eastern  coast  of  the  Atlantic  thirteen  little  communities,  the 
largest  of  which  (Virginia)  had  not  more  than  half  a  million  of 
free  people,  and  the  total  population  of  which  did  not  reach 
three  millions.  All  owned  allegiance  to  the  British  Crown,  all, 
except  Connecticut  and  Rhode  Island,  received  their  governors 
from  the  Crown ;  ^  in  all,  causes  were  carried  by  appeal  from 
the  colonial  courts  to  the  English  Privy  Council.  Acts  of  the 
British  Parliament  ran  there,  as  they  noAV  run  in  the  British 
colonies,  whenever  expressed  to  have  that  effect,  and  could 
over-rule  such  laws  as  the  colonies  might  make.  But  practi- 
cally each  colony  was  a  self-governing  commonwealth,  left  to 
manage  its  own  affairs  with  scarcely  any  interference  from 
home.  Each  had  its  legislature,  its  own  statutes  adding  to  or 
modifying  the  English  common  law,  its  local  corporate  life  and 
traditions,  with  no  small  local  pride  in  its  own  history  and  in- 
stitutions, superadded  to  the  pride  of  forming  part  of  the  Eng- 
lish race  and  the  great  free  British  realm.  Between  the  various 
colonies  there  was  no  other  political  connection  than  that  which 
arose  from  their  all  belonging  to  this  race  and  realm,  so  that 
the  inhabitants  of  each  enjoyed  in  every  one  of  the  others  the 
rights  and  privileges  of  British  subjects. 

When  the  oppressive  measures  of  the  home  government 
roused  the  colonies,  they  naturally  sought  to  organize  their 
resistance  in  common.-     Singly  they  would  have  been  an  easy 

1  In  Maryland  and  Pennsylvania,  however,  the  governor  was,  during  the 
larger  part  of  the  colonial  period,  appointed  hy  the  "  Proprietor." 

2  There  had  been  a  congress  of  delegates  from  seven  colonies  at  Albany  in 
1754  to  deliberate  on  measures  relative  to  the  impending  war  with  France,  but 
this,  of  course,  took  place  with  the  sanction  of  the  mother  country,  and  was 
a  purely  temporary  measure. 

19 


20  THE  NATIONAL   GOVERNMENT 


prey,  for  it  was  long  doubtful  whether  even  in  combination 
they  could  make  head  against  regular  armies.  A  congress  of 
delegates  from  nine  colonies  held  at  New  York  in  1765  was 
followed  by  another  at  Philadelphia  in  1774,  at  which  twelve 
were  represented,  which  called  itself  Continental  (for  the  name 
American  had  not  yet  become  established),^  and  spoke  in  the 
name  of  "  the  good  people  of  these  colonies,"  the  first  asser- 
tion of  a  sort  of  national  unity  among  the  English  of  America. 
This  congress,  in  which  from  1775  onwards  all  the  colonies 
were  represented,  was  a  merely  revolutionary  body,  called  into 
existence  by  the  war  with  the  mother  country.  But  in  1776  it 
declared  the  independence  of  the  colonies,  and  in  1777  it  gave 
itself  a  new  legal  character  by  framing  the  "■  Articles  of  Con- 
federation and  Perpetual  Union,"  -  whereby  the  thirteen  States 
(as  they  then  called  themselves)  entered  into  a  "  firm  league 
of  friendship  "  with  each  other,  offensive  and  defensive,  while 
declaring  that  "  each  State  retains  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and  right 
which  is  not  by  this  Confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled." 

This  Confederation,  which  was  not  ratified  by  all  the  States 
till  1781,  was  rather  a  league  than  a  national  government,  for 
it  possessed  no  central  authority  except  an  assembly  in  which 
every  State,  the  largest  and  the  smallest  alike,  had  one  vote,  and 
this  assembly  had  no  jurisdiction  over  the  individual  citizens. 
There  was  no  Federal  executive,  no  Federal  judiciary,  no 
means  of  raising  money  except  by  the  contributions  of  the 
States,  contributions  which  they  were  slow  to  render,  no  power 
of  compelling  the  obedience  either  of  States  or  individuals  to 
the  commands  of  Congress.  The  plan  corresponded  to  the 
wishes  of  the  colonists,  who  did  not  yet  deemx  themselves  a 
nation,  and  who  in  their  struggle  against  the  power  of  the  British 
Crown  were  resolved  to  set  over  themselves  no  other  power,  not 
even  one  of  their  own  choosing.  But  it  worked  badly  even 
while  the  struggle  lasted,  and  after  the  immediate  danger  from 

1  Till  the  middle  of  last  century  the  name  "  American  "  seems  to  have  denoted 
the  native  Indians,  as  it  does  in  Wesley's  hymn  "  The  dark  Americans  convert." 
So  Sir  Thomas  Browne  writes  "As  for  sopition  of  reason  and  the  diviner  particle 
from  drink,  tho'  American  religion  approve,  and  Pagan  piety  of  old  hath  prac- 
tised it,  etc."    The  "War  of  Independence  gave  the  word  its  present  meaning. 

2  See  these  Articles  in  the  Appendix  at  the  end  of  this  volume. 


CHAP.  Ill  THE   ORIGIN  OF  THE   CONSTITmON  21 

England  had  been  removed  by  the  peace  of  1783,  it  worked  still 
worse,  and  was  in  fact,  as  Washington  said,  no  better  than  an- 
archy. The  States  were  indifferent  to  Congress  and  their 
common  concerns,  so  indifferent  that  it  was  found  difficult  to 
procure  a  quorum  of  States  for  weeks  or  even  months  after  the 
day  fixed  for  meeting.  Congress  was  impotent,  and  commanded 
respect  as  little  as  obedience.  Much  distress  prevailed  in  the 
trading  States,  and  the  crude  attempts  which  some  legislatures 
made  to  remedy  the  depression  by  emitting  inconvertible  paper, 
by  constituting  other  articles  than  the  precious  metals  legal 
tender,  and  by  impeding  the  recovery  of  debts,  aggravated  the 
evil,  and  in  several  instances  led  to  seditious  outbreaks.^  The 
fortunes  of  the  country  seemed  at  a  lower  ebb  than  even  during 
the  war  with  England. 

Sad  experience  of  their  internal  difficulties,  and  of  the  con- 
tempt witli  which  foreign  governments  treated  them,  at  last  pro- 
duced a  feeling  that  some  tirmer  and  closer  union  was  needed. 
A  convention  of  delegates  from  five  States  met  at  Annapolis  in 
Maryland  in  1786  to  discuss  methods  of  enabling  Congress  to 
regulate  commerce,  which  sutfered  grievously  from  the  varying 
and  often  burdensome  regulations  imposed  by  the  several  States. 
It  drew  up  a  report  which  condennied  the  existing  state  of 
thmgs,  declared  that  reforms  Avere  necessary,  and  suggested  a 
further  general  convention  in  the  following  year  to  consider 
the  condition  of  the  Union  and  the  needed  amendments  in  its 
Constitution.  Congress,  to  which  the  rej^ort  had  been  pre- 
sented, approved  it,  and  recommended  the  States  to  send  dele- 
gates to  a  convention,  which  should  "revise  the  Articles  of 
Confederation,  and  rei:)ort  to  Congress  and  the  several  legis- 
latures such  alterations  and  provisions  therein  as  shall,  when 
agreed  to  in  Congress  and  confirmed  by  the  States,  render  the 
Federal  Constitution  adequate  to  the  exigencies  of  government 
and  the  preservation  of  the  Union." 

The  Convention  thus  summoned  met  at  Philadelphia  on  the 

1  Rhode  Island  was  the  most  conspicuous  offender.  This  singular  little 
commonwealth,  whose  area  is  1085  square  miles  (less  than  that  of  Ayrshire  or 
Antrim),  is  of  all  the  American  States  tliat  which  has  furnished  the  most 
abundant  analogies  to  the  republics  of  antiquity,  and  which  best  deserves  to 
have  its  annals  treated  of  by  a  philosophic  historian.  The  example  of  her 
disorders  did  much  to  bring  the  other  States  to  adopt  that  Federal  Constitution 
which  she  was  herself  the  last  to  accept. 


22  THE  NATIONAL  GOVERNMENT 


14th  May  1787,  became  competent  to  proceed  to  business  on 
May  2oth,  when  seven  States  were  represented,  and  chose 
George  Washington  to  preside.  Delegates  attended  from  every 
State*' but  Rhode  Isknd,  and  among  these  delegates  was  to  be 
found  nearly  all  the  best  intellect  and  the  ripest  political  expe- 
rience the  United  States  then  contained.  The  instructions  they 
had  received  limited  their  avithority  to  the  revision  of  the 
Articles  of  Confederation  and  the  proposing  to  Congress  and 
the  State  legislatures  such  improvements  as  were  required 
therein.^  But  with  admirable  boldness,  boldness  doubly  admi- 
rable in  Englishmen  and  lawyers,  the  majority  ultimately  re- 
solved to  disregard  these  restrictions,  and  to  prepare  a  wholly 
new  Constitution,  to  be  considered  and  ratified  neither  by 
Congress  nor  by  the  State  legislatures,  but  by  the  peoples  of 
the  several  States. 

This  famous  assembly,  which  consisted  of  fifty-five  delegates, 
thirty-nine  of  whom  signed  the  Constitution  which  it  drafted, 
sat  nearly  five  months,  and  expended  upon  its  work  an  amount 
of  labour  and  thought  commensurate  with  the  magnitude  of 
the  task  and  the  splendour  of  the  result.  The  debates  were 
secret,  a  proof  of  the  confidence  reposed  in  the  members ;  and 
it  was  well  that  they  were  secret,  for  criticism  from  without 
might  have  imperilled  a  work  which  seemed  repeatedly  on  the 
point  of  breaking  down,  so  great  were  the  difficulties  encoun- 
tered from  the  divergent  sentiments  and  interests  of  different 
parts  of  the  country,  as  well  as  of  the  larger  and  smaller  States.^ 

1  It  was  strongly  urged  when  the  draft  Constitution  came  up  for  ratifica- 
tion in  the  State  Conventions  that  the  Philadelphia  Convention  had  no  power 
to  do  more  than  amend  the  Articles  of  Confederation.  To  these  objections 
Mr.  Wilson,  speaking  in  the  Pennsylvania  Convention,  made  answer  as  fol- 
lows:—"The  business,  we  are  told,  which  was  intrusted  to  the  late  Con- 
vention was  merely  to  amend  the  present  Articles  of  Confederation.  This 
observation  has  been  frequently  made,  and  has  often  brought  to  my  mind  a 
story  that  is  related  of  Mr.  Pope,  who  it  is  well  known  was  not  a  little  de- 
formed. It  was  customary  for  him  to  use  this  phrase,  '  God  mend  me,'  when 
any  little  accident  happened.  One  evening  a  link  boy  was  lighting  him  along, 
and  coming  to  a  gutter  the  boy  jumped  nimbly  over  it.  Mr.  Pope  called  to 
him  to  turn,  adding  '  God  mend  me  ! '  The  arch  rogue,  turning  to  light  him, 
looked  at  him  and  repeated  'God  mend  you!  He  would  sooner  make  half  a 
dozen  new  ones.'  This  would  apply  to  the  present  Confederation,  for  it  would 
be  easier  to  make  another  than  to  amend  this."  — Elliot's  Debates,  vol.  ii. 
p.  472. 

2  Benjamin  Franklin,  Avho  was  one  of  the  delegates  from  Pennsylvania 
(being  then  eighty-one  years  of  age),  was  so  much  distressed  at  the  difficulties 


CHAP.  Ill  THE   ORIGIN  OF  THE  CONSTITUTION  23 

The  records  of  the  Convention  were  left  in  the  hands  of  Wash- 
ington, who  in  1796  deposited  them  in  the  State  Department. 
In  1819  they  were  published  along  with  the  notes  of  the  dis- 
cussions kept  by  James  Madison  (afterwards  twice  President), 
who  had  proved  himself  one  of  the  most  useful  members  of 
the  body.  From  these  official  records  and  notes  ^  the  history 
of  the  Convention  has  been  written. 

It  is  hard  to-day,  even  for  Americans,  to  realize  how  enor- 
mous those  difficulties  were.  The  Convention  had  not  only  to 
create  de  novo,  on  the  most  slender  basis  of  pre-existing  national 
institutions,  a  national  government  for  a  widely  scattered  peo- 
ple, but  they  had  in  doing  so  to  respect  the  fears  and  jealousies 
and  apparently  irreconcilable  interests  of  thirteen  separate 
commonwealths,  to  all  of  whose  governments  it  was  necessary 
to  leave  a  sphere  of  action  wide  enough  to  satisfy  a  deep-rooted 
local  sentiment,  yet  not  so  wide  as  to  imperil  national  unit5^^ 
Well  might  Hamilton  say :  "  The  establishment  of  a  Constitu- 
tion, in  time  of  profound  peace,  by  the  voluntary  consent  of  a 

which  arose  and  the  prospect  of  failure  that  he  proposed  tliat  the  Convention, 
as  all  human  means  of  obtaining  agreement  seemed  to  be  useless,  should  open 
its  meetings  with  prayer.  The  suggestion,  remarkable  as  coming  from  one 
so  well  known  for  his  sceptical  opinions,  would  have  been  adopted  but  for 
the  fear  that  the  outside  public  might  thus  learn  how  grave  the  position  of 
affairs  was.  The  original  of  Franklin's  proposition,  written  in  his  own  still 
clear  and  firm  hand,  with  his  note  stating  that  only  three  or  four  agreed 
with  him,  is  preserved  in  the  State  Department  at  Washington,  where  may 
be  also  seen  the  draft  of  the  Constitution  with  the  signatures  of  the  thirty- 
nine  delegates. 

1  They  are  printed  in  the  work  called  Elliot's  Debates,  which  also  contains 
the  extremely  interesting  debates  in  some  of  the  State  Conventions  which  rati- 
fied the  Constitution. 

For  some  remarks  on  Constitutional  Conventions  in  general,  see  the  note  to 
this  chapter  at  the  end  of  this  volume. 

2  The  nearest  parallels  to  such  a  Federal  Union  as  that  formed  in  1789 
were  then  to  be  found  in  the  Achaean  and  Lj'cian  Leagues,  which,  how- 
ever, were  not  mere  leagues,  but  federated  nations.  Both  are  referred  to  by 
the  authors  of  the  Federalist  (see  j^ost),  but  their  knowledge  was  evidently 
scanty.  The  acuteness  of  James  Wilson  had  perceived  that  the  two  famous 
confederations  of  modern  Europe  did  not  supply  a  model  for  America.  He 
observed  in  the  Pennsylvania  Convention  of  1788:  "The  Swiss  cantons  are 
connected  only  by  alliances.  The  United  Netherlands  are  indeed  an  assem- 
blage of  societies ;  but  this  assemblage  constitutes  no  new  one,  and  therefore 
it  does  not  correspond  with  the  full  definition  of  a  Confederate  Republic."  — 
Elliot's  Debates,  vol.  ii.  p.  422.  The  Swiss  Confederation  has  now  become  a 
Republic  at  once  Federal  and  national,  resembling  in  most  respects  its  Ameri- 
can model. 


24  THE   NATIONAL   GOVEENMENT  part  i 


wliole  people,  is  a  prodigy  to  the  completion  of  which  I  look 
forward  with  trembling  anxiety."  ^  And  well  might  he  quote 
the  words  of  David  Hume  {Essays;  ''The  Else  of  Arts  and 
Sciences "  )  :  "  To  balance  a  large  State  or  society,  whether 
monarchical  or  republican,  on  general  laws,  is  a  work  of  so 
great  difficulty  that  no  human  genius,  however  comprehensive, 
is  able  by  the  mere  dint  of  reason  and  reflection  to  effect  it. 
The  judgments  of  many  must  imite  in  the  work :  experience 
must  guide  their  labour ;  time  must  bring  it  to  perfection ;  and 
the  feeling  of  inconveniences  must  correct  the  mistakes  which 
they  inevitably  fall  into  in  their  first  trials  and  experiments." 
It  was  even  a  disputable  point  whether  the  colonists  were 
already  a  nation  or  only  the  raw  material  out  of  which  a  nation 
might  be  formed.-  There  were  elements  of  unity,  there  were 
also  elements  of  diversity.  All  spoke  the  same  language.  All, 
except  a  few  descendents  of  Dutchmen  and  Swedes  in  New 
York  and  Delaware,  some  Germans  in  Pennsylvania,  some 
children  of  French  Huguenots  in  New  England  and  the  middle 
States,  belonged  to  the  same  race.^  All,  except  some  Roman 
Catholics  in  Maryland,  professed  the  Protestant  religion.  All 
were  governed  by  the  same  English  Common  Law,  and  prized 
it  not  only  as  the  bulwark  which  liad  sheltered  their  forefathers 
from  the  oppression  of  the  Stuart  kings,  but  as  the  basis  of 
their  more  recent  claims  of  right  against  the  encroachments 
of  George  III.  and  his  colonial  officers.  In  ideas  and  habits  of 
life  there  was  less  similarity,  but  all  were  republicans,  manag- 
ing their  affairs  by  elective  legislatures,  attached  to  local  self- 
government,  and  animated  by  a  common  pride  in  their  success- 
ful resistance  to  England,  which  they  then  hated  with  a  true 
family  hatred,  a  hatred  to  which  her  contemptuous  treatment 
of  them  added  a  sting. 

1  Federalist,  No.  Ixxxv. 

2  Mr.  "Wilson  said  in  the  Pennsylvania  Convention  of  1787:  "By  adopting 
this  Constitution  we  shall  become  a  nation ;  we  are  not  now  one.  We  shall 
form  a  national  character:  we  are  now  too  dependent  on  others."  He  pro- 
ceeds with  a  remarkable  prediction  of  the  influence  which  American  freedom 
would  exert  upon  the  Old  World.  —  Elliot's  Debates,  vol.  ii.  p.  526. 

3  The  Irish,  a  noticeable  element  in  North  Carolina  and  parts  of  Pennsyl- 
vania, Virginia,  and  New  Hampshire,  were  not  Catholic  Celts  but  Scoto-Irish 
Presbyterians  from  Ulster,  who,  animated  by  resentment  at  the  wrongs  and 
religious  persecution  they  had  suffered  at  home,  had  been  among  the  foremost 
combatants  in  the  Revolutionary  War. 


THE   ORIGIN  OF   THE  CONSTITUTION  25 


On  the  other  hand  their  geographical  position  made  com- 
munication very  difficult.  The  sea  was  stormy  in  winter ;  the 
roads  were  bad;  it  took  as  long  to  travel  by  land  from  Charles- 
ton to  Boston  as  to  cross  the  ocean  to  Europe,  nor  was  the 
journey  less  dangerous.  The  wealth  of  some  States  consisted 
in  slaves,  of  others  in  shipping ;  while  in  others  there  was  a 
population  of  small  farmers,  characteristically  attached  to  old 
habits.  Manufactures  had  hardly  begun  to  exist.  The  senti- 
ment of  local  independence  showed  itself  in  intense  suspicion 
of  any  external  authority ;  and  most  parts  of  the  country  were 
so  thinly  peopled  that  the  inhabitants  had  lived  practically 
without  any  government,  and  thought  that  in  creating  one  they 
woidd  be  forging  fetters  for  themselves.  But  while  these 
diversities  and  jealousies  made  union  difficult,  two  dangers 
Avere  absent  which  have  beset  the  framers  of  constitutions  for 
other  nations.  There  were  no  reactionary  conspirators  to  be 
feared,  for  every  one  prized  liberty  and  equality.  There  were 
no  questions  between  classes,  no  animosities  against  rank  and 
wealth,  for  rank  and  wealth  did  not  exist. 

It  was  inevitable  under  such  circumstances  that  the  Consti- 
tution, while  aiming  at  the  establishment  of  a  durable  central 
power,  should  pay  great  regard  to  the  existing  centrifugal 
forces.  It  was  and  remains  Avhat  its  authors  styled  it,  emi- 
nently an  instrument  of  compromises ;  it  is  perhaps  the  most 
successful  instance  in  history  of  what  a  judicious  spirit  of 
compromise  may  effect.'  Yet  out  of  the  points  which  it  was 
for  this  reason  obliged  to  leave  unsettled  there  arose  fierce 
controversies,  which  after  tAvo  generations,  when  accumulated 
irritation  and  incurable  misunderstanding  had  been  added  to 
the  force  of  material  interests,  burst  into  flame  in  the  War  of 
Secession. 

^  The  draft  Constitution  Avas  submitted,  as  its  last  article  pro- 
vided, to  conventions  of  the  scA-eral  States  {i.e.  bodies  spe- 
cially chosen  by  the  people  for  the  purpose)  for  ratification.     It 

1  Hamilton  observed  of  it  in  1788:  "The  result  of  the  deliberations  of  all 
collective  bodies  must  necessarily  be  a  compound  as  well  of  the  errors  and 
prejudices  as  of  the  good  sense  and  wisdom  of  the  individuals  of  whom  they 
are  composed.  The  compacts  which  are  to  embrace  thirteen  distinct  States 
in  a  common  bond  of  amity  and  union  must  as  necessarily  be  a  compromise 
of  as  many  dissimilar  interests  and  inclinations.  How  can  perfection  spring 
from  such  materials  ?  "  —  Federalist,  No.  Ixxxv. 


20  THE   NATIONAL   G0VP:RNMENT 


was  to  come  into  effect  as  soon  as  nine  States  had  ratified,  the 
effect  of  which  would  have  been,  in  case  the  remaining  States, 
or  any  of  them,  had  rejected  it,  to  leave  such  States  standing 
alone  in  the  world,  since  the  old  Confederation  was  of  course 
superseded  and  annihilated.  Fortunately  all  the  States  did 
eventually  ratify  the  new  Constitution,  but  two  of  the  most 
important,  Virginia  and  New  York,^  did  not  do  so  till  the  mid- 
dle of  1788,  after  nine  others  had  already  accepted  it ;  and 
two,  North  Carolina  and  Rhode  Island,  at  first  refused,  and 
only  consented  to  enter  the  new  Union  more  than  a  year  later, 
when  the  government  it  had  crea.ted  had  already  come  into 
operation. 

There  was  a  struggle  everywhere  over  the  adoption  of 
the  Constitution,  a  struggle  presaging  the  birth  of  the  two 
great  parties  that  for  many  years  divided  the  American 
people.  The  chief  source  of  hostility  was  the  belief  that  a 
strong  central  government  endangered  both  the  rights  of  the 
States  and  the  liberties  of  the  individual  citizen.  Freedom,  it 
was  declared,  would  perish,  freedom  rescued  from  George  III. 
would  perish  at  the  hands  of  her  own  children.^  Consolida- 
tion (for  the  word  centralization  had  not  yet  been  invented) 
would  extinguish  the  State  governments  and  the  local  institu- 
tions they  protected.  The  feeling  was  very  bitter,  and  in  some 
States,  notably  in  Massachusetts  and  New  York,  the  majorities 
were  dangerously  narrow.  Had  the  decision  been  left  to  what 
is  now  called  "  the  voice  of  the  people,"  that  is,  to  the  mass  of 
the  citizens  all  over  the  country,  voting  at  the  polls,  the  voice 
of  the  people  would  probably  have  pronounced  against  the 
Constitution,  and  this  would  have  been  still  more  likely  if  the 
question  had  been  voted  on  everywhere  upon  the  same  day, 
seeing  that  several   doubtful  States  were   influenced  by  the 

1  Virffiuia  was  then  much  the  largest  State  (population  in  1790,  747,(il0). 
New  York  was  reckoned  anions  the  smaller  States  (population  340,120)  but 
her  central  geographical  position  made  her  adhesion  extremely  important. 

2  In  the  Massachusetts  Convention  of  1788  Mr.  Nasou  delivered  himself  of 
the  following  pathetic  appeal:  "And  here,  sir,  I  beg  the  indulgence  of  this 
honourable  body  to  permit  me  to  make  a  short  apostrophe  to  Liberty.  O  Lib- 
erty, thou  greatest  jiood  !  thou  fairest  property!  with  thee  I  wish  to  live  — 
with  thee  I  wish  to  die  !  Pardon  me  if  I  drop  a  tear  on  the  peril  to  which  she 
is  exposed.  I  cannot,  sir,  see  this  highest  of  jewels  tarnished  — a  jewel  worth 
ten  thousand  worlds;  and  shall  we  part  with  it  so  soon?  Oh  no!"  — Elliot's 
Debates,  ii.  133. 


CHAP.  Ill  THE   ORIGIN  OF   THE   CONSTITUTION  27 


approval  which  other  States  had  already  given.  But  the  mod- 
ern "  plebiscital  "  method  of  taking  the  popular  judgment  had 
not  been  invented.  The  question  was  referred  to  conventions 
in  the  several  States.  The  conventions  were  composed  of  able 
men,  who  listened  to  thoughtful  arguments,  and  were  themselves 
influenced  by  the  authority  of  their  leaders.  The  counsels 
of  the  wise  prevailed  over  the  prepossessions  of  the  multitude. 
Yet  these  counsels  w^ould  hardly  have  prevailed  but  for  a 
cause  which  is  apt  to  be  now  overlooked.  This  was  the  dread 
of  foreign  powers.^  The  United  States  had  at  that  time  two 
European  monarchies,  Spain  and  England,  as  its  neighbours  ou 
the  American  continent.  France  had  lately  held  territories  to 
the  north  of  them  in  Canada,  and  to  the  south  and  west  of 
them  in  Louisiana.^  She  had  been  their  ally  against  England, 
she  became  in  a  few  years  again  the  owner  of  territories  west 
of  the  Mississippi.  The  fear  of  foreign  interference,  the  sense 
of  weakness,  both  at  sea  and  on  land,  against  the  military 
monarchies  of  Europe,  was  constantly  before  the  mind  of 
American  statesmen,  and  made  them  anxious  to  secure  at  all 
hazards  a  national  government  capable  of  raising  an  army  and 
navy,  and  of  speaking  with  authority  on  behalf  of  the  new 
republic.  It  is  remarkable  that  the  danger  of  European  aggres- 
sion or  complications  was  far  more  felt  in  the  United  States 
from  1783  down  till  about  1820,  than  it  has  been  during  the 
last  half  century  when  steam  has  brought  Europe  five  times 
nearer  than  it  then  was. 

Several  of  the  conventions  which  ratified  the  Constitution 
accompanied  their  acceptance  with  an  earnest  recommendation 
of  various  amendments  to  it,  amendments  designed  to  meet 
the  fears  of  those  who  thought  that  it  encroached  too  far  upon 
the  liberties  of  the  people.     Some  of  these  were  adopted,  im- 

1  The  other  chief  cause  was  the  economic  distress  and  injury  to  trade  con- 
sequent on  the  disorganized  condition  of  several  States.  See  the  observations 
of  Mr.  Wilson  in  the  Pennsylvania  Convention  (Elliot's  Debates,  ii.  524).  He 
shows  that  the  case  was  one  of  necessity,  and  winds  up  with  the  remark, 
"The  argument  of  necessity  is  the  patriot's  defence  as  well  as  the  tyrant's 
plea." 

2  The  vast  territory  then  called  Louisiana  was  transferred  by  France  to 
Spain  in  1762,  but  Spanish  government  was  not  established  there  till  1789.  It 
was  ceded  by  Spain  to  France  in  1800,  and  purchased  by  the  United  States 
from  Napoleon  in  1803.  Spain  had  originally  held  Florida,  ceded  it  to  Britain 
in  17G3,  received  it  back  in  1783,  and  in  181'J  sold  it  to  the  United  States. 


28  THE  NATIONAL  GOVERNMENT 


mediately  after  the  original  instrument  had  come  into  force, 
by  the  method  it  prescribes,  viz.  a  two-thirds  majority  in  Con- 
gress and  a  majority  in  three-fourths  of  the  States.  They  are 
the  amendments  of  1791,  ten  in  number,  and  they  constitute 
what  the  Americans,  following  a  venerable  English  precedent, 
call  a  Bill  or  Declaration  of  Rights. 

The  Constitution  of  1789  ^  deserves  the  veneration  with 
which  the  Americans  have  been  accustomed  to  regard  it.  It  is 
true  that  many  criticisms  have  been  passed  upon  its  arrange- 
ment, upon  its  omissions,  upon  the  artificial  character  of  some 
of  the  institutions  it  creates.  Eecognizing  slavery  as  an  insti- 
tution existing  in  some  States,  ard  not  expressly  negativing 
the  right  of  a  State  to  withdraw  from  the  Union,  it  has  been 
charged  with  having  contained  the  germ  of  civil  war,  though 
that  germ  took  seventy  years  to  come  to  maturity.  And  what- 
ever success  it  has  attained  must  be  in  large  measure  ascribed 
to  the  political  genius,  ripened  by  long  experience,  of  the 
Anglo-American  race,  by  whom  it  has  been  worked,  and  who 
might  have  managed  to  work  even  a  worse  drawn  instrument. 
Yet,  after  all  deductions,  it  ranks  above  every  other  written 
constitution  for  the  intrinsic  excellence  of  its  scheme,  its  adap- 
tation to  the  circumstances  of  the  people,  the  simplicity,  brevity, 
and  precision  of  its  language,  its  judicious  mixture  of  definite- 
ness  in  principle  with  elasticity  in  details.^  One  is  therefore 
induced  to  ask,  before  proceeding  to  examine  it,  to  what  causes, 
over  and  above  the  capacity  of  its  authors,  and  the  patient  toil 
they  bestowed  upon  it,  these  merits  are  due,  or  in  other  words, 
what  were  the  materials  at  the  command  of  the  Philadelphia 
Convention  for  the  achievement  of  so  great  an  enterprise  as  the 

1  One  may  call  the  Constitutiou  after  either  the  year  1787,  when  it  was 
drafted,  or  the  year  1788,  when  it  was  accepted  by  the  requisite  number  of 
States,  or  the  year  1789,  when  it  took  full  effect,  the  Congress  of  the  Confed- 
eration having  fixed  tlie  first  Wednesday  in  March  in  that  year  as  the  day 
when  it  should  come  into  force.  The  year  1789  has  the  advantage  of  being 
easily  remembered,  because  it  coincides  with  the  beginning  of  the  great  revo- 
lutionary movements  of  modern  Europe.  The  Confederation  may  be  taken 
to  have  expired  with  the  expiry  of  its  Congress,  and  its  Congress  died  for  want 
of  a  quorum. 

2  The  literary  Bostonians  laid  hold  at  once  of  its  style  as  proper  for  admira- 
tion. Mr.  Ames  said  in  the  Massachusetts  Convention  of  1788,  "Considered 
merely  as  a  literary  performance,  the  Constitution  is  an  honour  to  our  country. 
Legislators  have  at  length  condescended  to  speak  the  language  of  philosophy." 
—  Elliot's  Debates,  ii.  55, 


CHAP.  Ill         THE    ORIGIN   OF   THE   CONSTITUTION  29 

creation  of  a  nation  by  means  of  an  instrument  of  government. 
The  American  Constitution  is  no  exception  to  the  rule  that 
everything  which  has  power  to  win  the  obedience  and  respect 
of  men  must  have  its  roots  deep  in  the  past,  and  that  the  more 
slowly  every  institution  has  grown,  so  much  the  more  enduring 
is  it  likely  to  prove.  There  is  little  in  this  Constitution  that 
is  absolutely  new.  There  is  much  that  is  as  old  as  Magna 
Charta. 

The  men  of  the  Convention  had  the  experience  of  the  Eng- 
lish Constitution.  That  Constitution,  very  different  then  from 
what  it  is  now,  was  even  then  not  quite  what  they  thought  it. 
Their  view  was  tinged  not  only  by  recollections  of  the  influence 
exercised  by  King  George  the  Third,  an  influence  due  to  transi- 
tory causes,  but  which  made  them  overrate  its  monarchical  ele- 
ment,^ but  also  by  the  presentation  of  it  Avhich  they  found  in 
the  work  of  Mr.  J\istice  Blackstone.  He,  as  was  natural  in  a 
lawyer  and  a  man  of  letters,  described  rather  its  theory  than  its 
practice,  and  its  theory  was  many  years  behind  its  practice. 
The  powers  and  functions  of  the  cabinet,  the  overmastering 
force  of  the  House  of  Commons,  the  intimate  connection 
between  legislation  and  administration,  these  which  are  to  us 
now  the  main  characteristics  of  the  English  Constitution  were 
still  far  from  fully  developed.  But  in  other  points  of  funda- 
mental importance  they  appreciated  and  turned  to  excellent 
account  its  spirit  and  methods. 

They  had  for  their  oracle  of  political  philosopliy  the  treatise 
of  Montesquieu  on  the  Spirit  of  Laws,  which,  published  anony- 
mously at  Geneva  forty  years  before,  had  won  its  way  to  an 
immense  authority  on  both  sides  of  the  ocean.  Montesquieu, 
contrasting  the  private  as  well  as  public  liberties  of  Eng- 
lishmen with  the  despotism  of  Continental  Europe,  had  taken 
the  Constitution  of  England  as  his  model  system,  and  had 
ascribed  its  merits  to  the  division  of  legislative,  executive,  and 
judicial  functions  which  he  discovered  in  it,  and  to  the  system 
of  checks  and  balances  whereby  its  equilibrium  seemed  to  be 
preserved.     No  general  principle  of  politics  laid  such  hold  on 

1  There  is  a  tendency  in  colonists  to  over-estimate  tlie  importance  of  the 
Crown,  whose  conspicuous  position  as  tlie  authority  common  to  the  whole 
empire  makes  it  an  ohject  of  special  interest  and  respect  to  persons  living 
at  a  distance.  It  touches  their  imagination,  whereas  assemblies  excite  their 
criticism. 


30  THE   NATIONAL   GOVERNMENT  part  i 

the  constitution-makers  and  statesmen  of  America  as  the 
dogma  tliat  the  separation  of  these  three  functions  is  essen- 
tial to  freedom.  It  had  already  been  made  the  groundwork 
of  several  State  constitutions.  It  is  always  reappearing  in 
their  writings :  it  was  never  absent  from  their  thoughts.  Of 
the  supposed  influence  of  other  Continental  authors  such  as 
liousseau,  or  even  of  English  thinkers  such  as  Burke,  there  are 
few  direct  traces  in  the  Federal  Constitution  or  in  the  classical 
contemporaneous  commentary  on  and  defence  of  it^  which  we 
owe  to  the  genius  of  Hamilton  and  his  less  famous  coadjutors, 
Madison  and  Jay.  But  we  need  only  turn  to  the  Declaration  of 
Independence  and  the  original  constitutions  of  the  States,  par- 
ticularly the  Massachusetts  Constitution  of  1780,  to  perceive 
that  abstract  theories  regarding  human  rights  had  laid  firm 
hold  on  the  national  mind.  Such  theories  naturally  expanded 
with  the  practice  of  republican  government,  and  have  at  various 
times  been  extremely  potent  factors  in  American  history.  But 
the  influence  of  France  and  her  philosophers  belongs  chiefly  to 
the  years  succeeding  1789,  when  Jefferson,  who  was  fortu- 
nately absent  in  Paris  during  the  Constitutional  Convention, 
headed  the  democratic  propaganda. 

Further,  they  had  the  experience  of  their  colonial  and  State 
governments,  and  especially,  for  this  was  freshest  and  most  in 
point,  the  experience  of  the  working  of  the  State  Constitutions, 
framed  at  or  since  the  date  when  the  colonies  threw  off  their 
English  allegiance.  Many  of  the  Philadelphia  delegates  had 
joined  in  preparing  these  instruments :  all  had  been  able  to 
watch  and  test  their  operation.  They  compared  notes  as  to  the 
merits,  tested  by  practice,  of  the  devices  which  their  States  had 
respectively  adopted.  They  had  the  inestimable  advantage  of 
knowing  written  or  rigid  constitutions  in  the  concrete ;  that  is 
to  say,  of  comprehending  how  a  system  of  government  actually 
moves  and  plays  under  the  control  of  a  mass  of  statutory  pro- 
visions defining  and  limiting  the  powers  of  its  several  organs. 
The  so-called  Constitution  of  England  consists  largely  of 
customs,  precedents,  traditions,  understandings,  often  vague 
and  always  flexible.     It  was  quite  a  different  thing,  and  for  the 

1  The  Federalist,  a  series  of  papers  published  in  the  New  York  newspapers 
in  advocacy  of  the  Federal  Constitution  when  the  question  of  accepting  it  was 
coming  before  the  New  York  State  Convention. 


CHAP.  Ill  THE   ORIGIN   OF   THE   CONSTITUTION  31 

purpose  of  making  a  constitution  for  tlie  American  nation  an 
even  more  important  thing,  to  have  lived  under  and  learnt  to 
work  systems  determined  by  the  hard  and  fast  lines  of  a  single 
document  having  the  full  force  of  law,  for  this  experience 
taught  them  how  much  might  safely  be  included  in  such  a 
document,  and  how  far  room  must  be  left  under  it  for  unpre- 
dictable emergencies  and  unavoidable  development. 

Lastly,  they  had  in  the  principle  of  the  English  common 
law  that  an  act  done  by  any  official  person  or  law-making  body 
beyond  his  or  its  legal  competence  is  simply  void,  a  key  to 
the  difficulties  involved  in  the  establishment  of  a  variety  of 
authorities  not  subordinate  to  one  another,  but  each  supreme 
in  its  own  defined  sphere.  The  application  of  this  principle 
made  it  possible  not  only  to  create  a  National  government  which 
should  leave  free  scope  for  the  working  of  the  State  govern- 
ments, but  also  so  to  divide  the  powers  of  the  National  govern- 
ment among  various  persons  and  bodies  as  that  none  should 
absorb  or  overbear  the  others.  By  what  machinery  these 
objects  were  attained  will  appear  when  we  come  to  consider 
the  effect  of  a  written  or  rigid  constitution  embodying  a  funda- 
mental law,  and  the  functions  of  the  judiciary  in  expounding 
and  applying  such  a  law.^ 

1  See  post,  Chapters  XXIII.  and  XXXIII. 


CHAPTER   IV 

NATURE    OF    THE    FEDERAL    GOVERNMENT 

The  acceptance  of  the  Constitution  of  1789  made  the  Ameri- 
can people  a  nation.  It  turned  what  had.  been  a  League  of 
States  into  a  Federal  State,  by  giving  it  a  National  Govern- 
ment with  a  direct  authority  over  all  citizens.  But  as  this 
national  government  was  not  to  supersede  the  governments  of 
the  States,  the  problem  which  the  Constitution-makers  had 
to  solve  was  two-fold.  They  had  to  create  a  central  govern- 
ment. They  had  also  to  determine  the  relations  of  this  cen- 
tral government  to  the  States  as  well  as  to  the  individual 
citizen.  An  exposition  of  the  Constitution  and  criticism  of  its 
working  must  therefore  deal  with  it  in  these  two  aspects,  as  a 
system  of  national  government  built  up  of  executive  powers 
and  legislative  bodies,  like  the  monarchy  of  England  or  the 
republic  of  France,  and  as  a  Federal  system  linking  together 
and  regulating  the  relations  of  a  number  of  commonwealths 
which  are  for  certain  purposes,  but  for  certain  purposes  only, 
subordinated  to  it.  It  will  conduce  to  clearness  if  these  two 
aspects  are"  kept  distinct ;  and  the  most  convenient  course  will 
be  to  begin  with  the  former,  and  first  to  describe  the  American 
system  as  a  jSTational  system,  leaving  its  Federal  character  for 
the  moment  on  one  side. 

It  must,  however,  be  remembered  that  the  Constitution  does 
not  profess  to  be  a  complete  scheme  of  government,  creating 
organs  for  the  discharge  of  all  the  functions  and  duties  which 
a  civilized  community  undertakes.  It  presupposes  the  State 
governments.  It  assumes  their  existence,  their  wide  and  con- 
stant activity.  It  is  a  scheme  designed  to  provide  for  the  dis- 
charge of  such  and  so  many  functions  of  government  as  the 
States  did  not,  and  indeed  could  not,  or  at  any  rate  could  not 
adequately,  possess  and  discharge.    It  is  therefore,  so  to  speak, 

32 


CHAP.  IV      NATURE   OF  THE  FEDERAL  GOVERNMENT  33 

the  complement  and  crown  of  tlie  State  Constitutions,  which 
must  be  read  along  with  it  and  into  it  in  order  to  make  it  cover 
the  whole  held  of  civil  government,  as  do  the  Constitutions  of 
such  countries  as  France,  Belgium,  Italy. 

The  administrative,  legislative,  and  judicial  functions  for 
which  the  Federal  Constitution  provides  are  those  relating  to 
matters  which  must  be  deemed  common  to  the  whole  nation, 
either  because  all  the  parts  of  the  nation  are  alike  interested 
in  them,  or  because  it  is  only  by  the  nation  as  a  whole  that 
they  can  be  satisfactorily  undertaken.  The  chief  of  these 
common  or  national  matters  are  ^  — 

War  and  peace :  treaties  and  foreign  relations  generally. 

Army  and  navy. 

Federal  courts  of  justice. 

Commerce,  foreign  and  domestic. 

Currency. 

Copyright  and  patents. 

The  post-office  and  post  roads. 

Taxation  for  the  foregoing  purjjoses,  and  for   the  general 

support  of  the  Government. 
The  protection  of  citizens  against  unjust  or  discriminating 

legislation  by  any  State.^ 

This  list  includes  the  subjects  upon  which  the  national  legis- 
lature has  the  right  to  legislate,  the  national  executive  to 
enforce  the  Federal  laws  and  generally  to  act  in  defence  of 
national  interests,  the  national  judiciary  to  adjvidicate.  All 
other  legislation  and  administration  is  left  to  the  several 
States,  without  power  of  interference  by  the  Federal  legisla- 
ture or  Federal  executive. 

Such  then  being  the  sphere  of  the  National  government,  let 
us  see  in  what  manner  it  is  constituted,  of  what  departments 
it  consists. 

1  The  full  list  will  be  found  in  the  Constitution,  Art.  i.  §  8  (printed  in  the 
Appendix),  with  which  may  be  compared  the  British  North  America  Act  1867 
(30  and  31  Vict.  cap.  8),  and  tlie  Federal  Council  of  Australasia  Act  1885  (48 
and  49  Vict.  cap.  60),  tlie  Swiss  Constitution  of  1874  (Arts.  8,  22,  30,  42,  54,  64, 
67-70),  and  the  interesting  draft  Constitution  of  the  Commonwealth  of  Austra- 
lia, prepared  by  the  Sydney  Convention  of  1891. 

2  Amendments  xiv.  and  xv. 

VOL.  I  D 


34  THE  NATIONAL  GOVERNMENT 


The  fraiuers  of  this  government  set  before  themselves  four 
objects  as  essential  to  its  excellence,  viz.  — 

Its  vigour  and  efficiency. 

The  independence  of  each  of  its  departments  (as  being  essen- 
tial to  the  permanency  of  its  form). 
Its  dependence  on  the  people. 
The  security  under  it  of  the  freedom  of  the  individual. 

The  first  of  tliese  objects  they  sought  by  creating  a  strong 
executive,  the  second  by  separating  the  legislative,  executive, 
and  judicial  powers  from  one  another,  and  by  the  contrivance 
of  various  checks  and  balances,  the  third  by  making  all  authori- 
ties elective  and  elections  frequent,  the  fourth  both  by  the 
checks  and  balances  aforesaid,  so  arranged  as  to  restrain  any 
one  department  from  tyranny,  and  by  placing  certain  rights  of 
the  citizen  under  the  protection  of  the  written  Constitution. 

They  had  neither  the  rashness  nor  the  capacity  necessary  for 
constructing  a  Constitution  a  priori.  There  is  wonderfully  little 
genuine  inventiveness  in  the  world,  and  perhaps  least  of  all  has 
been  shown  in  the  sphere  of  political  institutions.  These  men, 
practical  politicians  who  kncAV  how  infinitely  difficult  a  business 
government  is,  desired  no  bold  experiments.  They  preferred, 
so  far  as  circumstances  permitted,  to  walk  in  the  old  paths,  to 
follow  methods  which  experience  had  tested.^  Accordingly 
they  started  from  the  system  on  which  their  own  colonial  gov- 
ernments, and  afterwards  their  State  governments,  had  been 
conducted.  This  system  bore  a  general  resemblance  to  the 
British  Constitution ;  and  in  so  far  it  may  with  truth  be  said 
that  the  British  Constitution  became  a  model  for  the  new 
national  government.  They  held  England  to  be  the  freest  and 
best-governed  coiuitry  in  the  world,  but  were  resolved  to  avoid 
the  weak  points  wliich  had  enabled  King  George  III.  to  play 
the  tyrant,  and  which  rendered  English  liberty,  as  they  thought, 

1  Mr.  Lowell  has  said  with  equal  point  and  truth  of  the  men  of  the  Conven- 
tion: "They  had  a  profound  disbelief  in  theory  and  knew  better  than  to 
commit  the  folly  of  breaking  witli  the  past.  Tliey  were  not  seduced  by  the 
French  fallacy  tliat  a  new  system  of  Government  could  be  ordered  like  a  new 
suit  of  clothes.  They  would  as  soon  have  thought  of  ordering  a  suit  of  flesh 
and  skin.  It  is  only  on  the  roaring  loom  of  time  tliat  the  stuff  is  woven  for 
such  a  vesture  of  tlieir  tlionght  and  experience  as  they  were  meditating."  — 
Address  on  Democracy,  delivered  Oct.  C,  1884. 


CHAP.  IV     NATURE  OF  THE  FEDERAL  GOVERNMENT  35 

far  iBferior  to  that  which  the  constitutions  of  their  own  States 
secured.  With  this  venerable  mother,  and  these  chiklren,  bet- 
ter in  their  judgment  than  the  mother,  before  their  eyes,  they 
created  an  executive  magistrate,  the  President,  on  the  model  of 
the  State  Governor,  and  of  the  British  Crown.  They  created  a 
legislature  of  two  Houses,  Congress,  on  the  model  of  the  two 
Houses  of  their  State  legislatures,  and  of  the  British  Parlia- 
ment. And  following  the  precedent  of  the  British  judges,  irre- 
movable except  by  the  Crown  and  Parliament  combined,  they 
created  a  judiciary  appointed  for  life,  and  irremovable  save  by 
impeachment.^ 

In  these  great  matters,  however,  as  well  as  in  many  lesser 
matters,  they  copied  not  so  much  the  Constitution  of  England 
as  the  Constitutions  of  their  several  States,  in  which,  as  was 
natural,  many  features  of  the  English  Constitution  had  been 
embodied.  It  has  been  truly  said  that  nearly  every  provision 
of  the  Federal  Constitution  that  has  worked  well  is  one  bor- 
rowed from  or  suggested  by  some  State  constitution ;  nearly 
every  provision  that  has  worked  badly  is  one  wdiich  the  Con- 
vention, for  w^ant  of  a  precedent,  was  obliged  to  devise  for  itself. 
To  insist  on  this  is  not  to  detract  from  the  glory  of  that  illus- 
trious body,  for  if  w^e  are  to  credit  them  with  less  inventiveness 
than  has  sometimes  been  claimed  for  them,  w^e  must  also  credit 
them  with  a  double  j^ortion  of  the  wisdom  which  prefers  experi- 
ence to  a  priori  theory,  and  the  sagacity  which  selects  the  best 
materials  from  a  mass  placed  before  it,  aptly  combining  them 
to  form  a  new  structure.^ 

Of  minor  divergences  between  their  work  and  the  British 
Constitution  I  shall  speak  subsequently.  But  one  profound 
difference  must  be  noted  here.  The  British  Parliament  had 
always  been,  was  then,  and  remains  now,  a  sovereign  and  con- 
stituent assembly.  It  can  make  and  unmake  any  and  every 
law,  change  the  form  of  government  or  the  succession  to  the 
crown,  interfere  with  the  course  of  justice,  extinguish  the  most 

1  ISIinor  differences  between  the  Englisli  and  American  systems  are  that  the 
American  Federal  judge  is  appointed  liy  the  President,  "with  the  advice  and 
consent  of  the  Senate,"  an  English  jndjie  hy  the  Crown  alone:  an  American 
jndge  is  impeachable  by  the  Honse  of  Representatives,  and  tried  by  the  Senate, 
an  English  judge  is  removable  by  the  Crown  on  an  address  by  both  Houses. 

2  See  note  to  this  chaptfr  in  the  Appendix  for  further  remarks  on  the  influ- 
ence of  the  State  Constitutions. 


36  THE   NATIONAL   GOVERNMENT 


sacred  private  rights  of  the  citizen.  Between  it  and  the  peo- 
l)le  at  hirge  there  is  no  legal  distinction,  because  the  whole  plen- 
itude of  the  people's  rights  and  powers  resides  in  it,  just  as  if 
the  whole  nation  were  present  within  the  chamber  where  it  sits. 
In  point  of  legal  theory  it  is  the  nation,  being  the  historical 
successor  of  the  Folk  Moot  of  our  Teutonic  forefathers.  Both 
practically  and  legally,  it  is  to-day  the  only  and  the  sufficient 
depository  of  the  authority  of  the  nation;  and  is  therefore, 
within  the  sphere  of  law,  irresponsible  and  omnipotent. 

In  the  American  system  the'-e  exists  no  such  body.  Not 
merely  Congress  alone,  but  also  Congress  and  the  President 
conjoined,  are  sid)ject  to  the  Constitution,  and  cannot  move  a 
step  outside  the  circle  which  the  Constitution  has  drawn  around 
them.  If  they  do,  they  transgress  the  law  and  exceed  their 
powers.  Such  acts  as  they  may  do  in  excess  of  their  powers 
are  void,  and  may  be,  indeed  ought  to  be,  treated  as  void  by  the 
meanest  citizen.  The  only  power  which  is  ultimately  sovereign, 
as  the  British  Parliament  is  always  and  directly  sovereign,  is 
the  people  of  the  States,  acting  in  the  manner  prescribed  by  the 
Constitution,  and  capable  in  that  manner  of  passing  any  law 
whatever  in  the  form  of  a  constitutional  amendment. 

This  fundamental  divergence  from  the  British  system  is 
commonly  said  to  have  been  forced  upon  the  men  of  1787  by 
the  necessity,  in  order  to  safeguard  the  rights  of  the  several 
States,  of  limiting  the  competence  of  the  national  government.' 
But  even  supposing  there  had  been  no  States  to  be  protected, 
the  jealousy  which  the  American  people  felt  of  those  whom  they 
chose  to  govern  them,  their  fear  lest  one  power  in  the  govern- 
ment should  absorb  the  rest,  their  anxiety  to  secure  the  pri- 
mordial rights  of  the  citizens  from  attack,  either  by  magistrate 
or  by  legislature,  would  doubtless  have  led,  as  happened  with 
the  earlier  constitutions  of  revolutionary  France,  to  the  crea- 
tion of  a  supreme  constitution  or  fundamental  instrument  of 
government,  placed  above  and  controlling  the  national  legis- 
lature itself.  They  had  already  such  fundamental  instrument 
in  the  charters  of  the  colonies,  which  had  passed  into  the  con- 

1  It  is  often  assumed  by  writers  on  constitutional  subjects  that  a  Federal 
Government  presupposes  a  written  or  Rigid  constitution.  This  is  not  neces- 
sarily so.  Tliere  may  be,  and  have  been,  federations  with  no  fundamental 
law  unalterable  by  the  usual  legislative  authority.  The  Achaean  League  had 
apparently  none. 


CHAP.  IV     NATURE  OF  THE  FEDERAL  GOVERNMENT  37 


stitatious  of  the  several  States  ;  and  they  woukl  certainly  have 
followed,  in  creating  their  national  constitution,  a  precedent 
which  they  deemed  so  precious. 

The  subjection  of  all  the  ordinary  authorities  and  organs  of 
government  to  a  supreme  instrument  expressing  the  will  of  the 
sovereign  people,  and  capable  of  being  altered  by  them  only, 
has  been  usually  deemed  the  most  remarkable  novelty  of  the 
American  system.  But  it  is  merely  an  application  to  the  wider 
sphere  of  the  nation,  of  a  plan  approved  by  the  experience  of 
the  several  States.  And  the  plan  had,  in  these  States,  been  the 
outcome  rather  of  a  slow  course  of  historical  development  than 
of  conscious  determination  taken  at  any  one  point  of  their  prog- 
ress from  petty  settlements  to  powerful  republics.  JSTeverthe- 
less,  it  may  well  be  that  the  minds  of  the  leaders  who  guided 
this  development  were  to  some  extent  influenced  and  inspired 
by  recollections  of  the  English  Commonwealth  of  the  seven- 
teenth eentixry,  which  had  seen  tlie  estal)lishment,  though  for 
a  brief  space  only,  of  a  genuine  supreme  or  rigid  constitution,  in 
the  form  of  the  famous  Instrument  of  Government  of  a.d.  1653, 
and  some  of  whose  sages  had  listened  to  the  discourses  in  which 
James  Harrington,  one  of  the  most  prescient  minds  of  that 
great  age,  showed  the  necessity  for  such  a  constitution,  and 
laid  down  its  principles,  suggesting  that,  in  order  to  give  it  the 
higher  authority,  it  should  be  subscribed  by  the  people  them- 
selves. 

We  may  now  proceed  to  consider  the  several  departments  of 
the  National  Government.  It  will  be  simplest  to  treat  of  each 
separately,  and  then  to  examine  the  relations  of  each  to  the 
others,  reserving  for  subsequent  chapters  an  account  of  the  rela- 
tions of  the  National  Government  as  a  whole  to  the  several 
States. 


CHAPTER  V 

THE     PRESIDENT 

Every  one  who  undertakes  to  describe  the  American  system 
of  government  is  obliged  to  follow  the  American  division  of  it 
into  the  three  departments  —  Executive,  Legislative,  Judicial. 
1  begin  witli  the  executive,  as  the  simplest  of  the  three. 

The  President  is  the  creation  of  the  Constitution  of  1789. 
Under  the  Confederation  there  was  only  a  presiding  officer  of 
Congress,  but  no  head  of  the  nation. 

Why  was  it  thoixght  necessary  to  have  a  President  at  all  ? 
The  fear  of  monarchy,  of  a  strong  government,  of  a  centralized 
government,  prevailed  widely  in  1787.  George  III.  was  an 
object  of  hatred :  he  remained  a  bogey  to  succeeding  genera- 
tions of  American  children.  The  Convention  found  it  ex- 
tremely hard  to  devise  a  satisfactory  method  of  choosing  the 
President,  nor  has  the  method  they  adopted  proved  satisfactory. 
That  a  single  head  is  not  necessary  to  a  rexmblic  might  have 
been  suggested  to  the  Americans  by  those  ancient  examj^les  to 
which  they  loved  to  recur.  The  experience  of  modern  Switzer- 
land has  made  it  still  more  obvious  to  us  now.  Yet  it  was 
settled  very  early  in  the  debates  of  1787  that  the  central  execu- 
tive authority  must  be  vested  in  one  person  ;  and  the  oppo- 
nents of  the  draft  Constitution,  while  quarrelling  with  his 
powers,  did  not  accuse  his  existence. 

The  explanation  is  to  be  found  not  so  much  in  a  wish  to 
reproduce  the  British  Constitution  as  in  the  familiarity  of  the 
Americans,  as  citizens  of  the  several  States,  with  the  office  of 
State  governor  (in  some  States  then  called  President)  and  in 
their  disgust  with  the  feebleness  which  Congress  had  shown 
under  the  Confederation  in  its  conduct  of  the  war,  and,  after 
peace  was  concluded,  of  the  general  business'  of  the  country. 
Opinion  called  for  a  man,  because  an  assembly  had  been  found 

38 


THE   PRESIDENT  39 


to  lack  promptitude  and  vigour.  Aud  it  may  be  conjectured 
tliat  the  alarms  felt  as  to  the  danger  from  one  man's  predomi- 
nance were  largely  allayed  by  the  presence  of  George  Washing- 
ton. Even  while  the  debates  were  proceeding,  every  one  must 
have  thought  of  him  as  the  proper  person  to  preside  over  the 
Union  as  he  was  then  presiding  over  the  Convention.  The 
creation  of  the  office  would  seem  justified  by  the  existence  of 
a  person  exactly  fitted  to  fill  it,  one  whose  established  influence 
and  ripe  judgment  would  repair  the  faults  then  supposed  to 
be  characteristic  of  democracy,  its  impulsiveness,  its  want  of 
respect  for  authority,  its  incapacity  for  pursuing  a  consistent 
line  of  action. 

Hamilton  felt  so  strongly  the  need  for  having  a  vigorous  ex- 
ecutive who  could  maintain  a  continuous  policy,  as  to  propose 
that  the  head  of  the  state  should  be  appointed  for  good  behav- 
iour, i.e.  for  life,  subject  to  removal  by  impeachment.  The 
proposal  was  defeated,  though  it  received  the  support  of  persons 
so  democratically -minded  as  Madison  and  Edmund  Randolph ; 
but  nearly  all  sensible  men,  including  many  who  thought  better 
of  democracy  than  Hamilton  himself  did,  admitted  that  the  risks 
of  foreign  war,  risks  infinitely  more  serious  in  the  infancy  of 
the  Republic  than  they  have  subsequently  proved,  required  the 
concentration  of  executive  powers  into  a  single  hand.  And  the 
fact  that  in  every  one  of  their  commonwealths  there  existed  an 
officer  in  whom  the  State  constitution  vested  executive  author- 
ity, balancing  him  against  the  State  legislature,  made  the  estab- 
lishment of  a  Federal  chief  magistrate  seem  the  obvious  course. 

Assuming  that  there  was  to  be  such  a  magistrate,  the  states- 
men of  the  Convention,  like  the  solid  practical  men  they  were, 
did  not  try  to  construct  him  out  of  their  own  brains,  but  looked 
to  some  existing  models.  They  therefore  made  an  enlarged 
copy  of  the  State  Governor,  or  to  put  the  same  thing  differently, 
a  reduced  and  improved  copy  of  the  English  king.  He  is  George 
III.  shorn  of  a  part  of  his  prerogative  by  the  intervention  of  the 
Senate  in  treaties  and  appointments,  of  another  part  by  the 
restriction  of  his  action  to  Federal  affairs,  while  his  dignity  as 
well  as  his  influence  are  diminished  by  his  holding  office  for  four 
years  instead  of  for  life.^     His  salary  is  too  small  to  permit  him 

1  When  the  Romans  got  rid  of  their  king,  they  did  not  really  extinguish  the 
office,  hut  set  up  in  their  consul  a  sort  of  annual  king,  limited  not  ouly  hy  the 


40  THE  NATIONAL   GOVERNMENT  part  i 

either  to  maintain  a  Court  or  to  corriipt  the  h^gishiture ;  nor 
can  he  seduce  the  virtue  of  the  citizens  by  the  gift  of  titles  of 
nobility,  for  such  titles  are  altogether  forbidden.  Subject  to 
these  precautions,  he  was  meant  by  the  constitution-framers 
to  resemble  the  State  governor  and  the  British  king,  not  only 
in  being  the  head  of  the  executive,  but  in  standing  apart  from 
and  above  political  parties.  He  was  to  represent  the  nation  as 
a  whole,  as  the  governor  represented  the  State  commonwealth. 
The  independence  of  his  position,  with  nothing  either  to  gain 
or  to  fear  from  Congress,  would,  it  was  hoped,  set  him  free  to 
think  only  of  the  welfare  of  the  people. 

This  idea  appears  in  the  method  provided  for  the  election 
of  a  President.  To  have  left  the  choice  of  the  chief  magis- 
trate to  a  direct  popular  vote  over  the  whole  country  would 
have  raised  a  dangerous  excitement,  and  would  have  given  too 
much  encouragement  to  candidates  of  merely  popular  gifts. 
To  have  entrusted  it  to  Congress  would  have  not  only  sub- 
jected the  executive  to  the  legislature  in  violation  of  the  prin- 
ciple which  requires  these  departments  to  be  kept  distinct,  but 
have  tended  to  make  him  the  creature  of  one  particular  faction 
instead  of  the  choice  of  the  nation.  Hence  the  device  of  a 
double  election  was  adopted,  perhaps  with  a  faint  reminiscence 
of  the  methods  by  which  the  Doge  was  then  still  chosen  at 
Venice  and  the  Roman  Emperor  in  Germany.  The  Constitution 
directs  each  State  to  choose  a  number  of  presidential  electors 
equal  to  the  number  of  its  representatives  in  both  Houses  of 
Congress.  Some  weeks  later,  these  electors  meet  in  each  State 
on  a  day  fixed  by  law,  and  give  their  votes  in  writing  for  the 
President  and  Vice-President.^  The  votes  are  transmitted, 
sealed  up,  to  the  capital  and  there  opened  by  the  president  of 

short  duration  of  his  power,  but  also  by  the  existence  of  anotlier  consul  with 
equal  powers.  So  the  Americans  hoped  to  restrain  their  President  not  merely 
by  the  shortness  of  his  term,  but  also  by  diminislnng  the  power  which  they 
left  to  him ;  and  this  tliey  did  by  setting  up  another  authority  to  which  they 
entrusted  certain  executive  functions,  making  its  consent  necessaiy  to  the 
validity  of  certain  classes  of  the  President's  executive  acts.  This  is  the 
Senate,  wliereof  more  anon. 

1  Originally  the  person  who  received  most  votes  was  deemed  to  have  been 
chosen  President,  and  the  person  who  stood  second,  Vice-President.  This  led 
to  confusion,  and  was  accordingly  altered  by  the  twelfth  constitutional  amend- 
ment, adopted  in  1804,  which  provides  that  the  President  and  Vice-President 
shall  be  voted  for  separately. 


THE   PRESIDENT  41 

the  Senate  in  the  presence  of  both  Houses  and  counted.  To 
preserve  the  electors  from  the  influence  of  faction,  it  is  pro- 
vided that  they  shall  not  be  members  of  Congress,  nor  holders 
of  any  Federal  office.  This  plan  was  expected  to  secure  the 
choice  by  the  best  citizens  of  each  State,  in  a  tranquil  and 
deliberate  way,  of  the  man  whom  they  in  their  unfettered  dis- 
cretion should  deem  fittest  to  be  chief  magistrate  of  the  Union. 
Being  themselves  chosen  electors  on  account  of  their  personal 
merits,  they  would  be  better  qualified  than  the  masses  to  select 
an  able  and  honourable  man  for  President.  Moreover,  as  the 
votes  are  counted  promiscuously,  and  not  by  States,  each  elec- 
tor's voice  would  have  its  weight.  He  might  be  in  a  minority 
in  his  own  State,  but  his  vote  would  nevertheless  tell  because 
it  would  be  added  to  those  given  by  electors  in  other  States 
for  the  same  candidate. 

jSTo  part  of  their  scheme  seems  to  have  been  regarded  by  the 
constitution-makers  of  1787  with  more  complacency  than  this,^ 
although  no  part  had  caused  them  so  much  perplexity.  No 
part  has  so  utterly  belied  their  expectations.  The  presidential 
electors  have  become  a  mere  cog-wheel  in  the  machine ;  a  mere 
contrivance  for  giving  effect  to  the  decision  of  the  people. 
Their  personal  qualifications  are  a  matter  of  indifference. 
They  have  no  discretion,  but  are  chosen  under  a  pledge  —  a 
pledge  of  honour  merely,  but  a  pledge  which  has  never  (since 
1796)  been  violated  —  to  vote  for  a  particular  candidate.  In 
choosing  them  the  people  virtually  choose  the  President,  and 
thus  the  very  thing  which  the  men  of  1787  sought  to  prevent 
has  happened,  —  the  President  is  chosen  by  a  popular  vote. 
Let  us  see  how  this  has  come  to  pass. 

In  the  first  two  presidential  elections  (in  1789  and  1792)  the 
independence  of  the  electors  did  not  come  into  question,  because 
everybody  was  for  Washington,  and  parties  had  not  yet  been 
fully  developed.  Yet  in  the  election  of  1792  it  was  generally 
understood  that  electors  of  one  way  of  thinking  were  to  vote 
for  Clinton  as  their  second  candidate  (i.e.  for  Vice-President) 
and  those  of  the  other  side  for  John  Adams.     In  the  third 

1  "  The  mode  of  appointment  of  the  chief  magistrate  of  the  United  States  is 
ahiiost  the  only  part  of  the  system  which  has  escaped  without  some  censure, 
or  which  lias  received  the  slightest  mark  of  approhation  from  its  opponents." 
—  Federalist,  No.  Ixvii.,  cf.  Xo.  1.  and  see  the  observations  of  Mr.  Wilson  in 
the  Convention  of  Pennsylvania  :  Elliot's  Deh((te.<<.  vol.  ii. 


42  THE   NATIONAL   GOVERNMENT 


election  (1796)  no  pledges  were  exacted  from  electors,  but  the 
election  contest  in  which  they  were  chosen  was  conducted  on 
party  lines,   and  although,  when  the  voting  by  the   electors 
arrived,  some  few  votes  were  scattered  among  other  persons, 
there  were  practically  only  two  presidential  candidates  before 
the   country,    John   Adams   and   Thomas   Jefferson,   for  the 
former  of  whom  the  electors  of  the  Federalist  party,  for  the 
latter    those   of   the   Kepublican    (Democratic)  ^   party   were 
expected   to   vote.     The  fourth  election  was  a  regular  party 
struggle,  carried  on  in  obedience  to  party  arrangements.    ^  Both 
Federalists  and  Eepublicans  put  the  names  of  their  candidates 
for   President   and   Vice-President    before   the   country,   and 
roiind  these  names  the  battle  raged.     The  notion  of  leaving 
any  freedom  or  discretion  to  the  electors  had  vanished,  for  it 
was  felt  that  an  issue  so  great  must  and  could  be  decided  by 
the  nation  alone.      From  that  day  till  now  there  has  never 
been  any  question  of  reviving  the  true  and  original  intent  of 
the  plan  of  double  election.     Even  in  1876  the  suggestion  that 
the  disputed  election  might  be  settled  by  leaving  the  electors 
free  to  choose,  found  no  favor.    Hence  nothing  has  ever  turned 
on   the   personality  of  the  electors.     They  are  now  so  little 
significant  that  to  enable  the  voter  to  know  for  which  set  of 
electors  his  party  desires  him  to  vote,  it  is  often  thought  well  to 
put  the  name  of  the  presidential  candidate  whose  interest  they 
represent  at  the  top  of  the  voting  ticket  on  which  their  own 
names  are  printed.     Nor  need  this  extinction  of  the  discretion 
of  the  electors  be   regretted,  because  what  has  happened  in 
somewhat  similar  cases  makes  it  certain  that  the  electors  would 
have  so  completely  fallen  under  the  control  of  the  party  organ- 
izations as  to  vote  simply  at  the  bidding  of  the  party  man- 
agers.    Popular   election   is   therefore,  whatever   may   be   its 
defects,  a  healthier  method,  for  it  enables  the  people  to  reject 
candidates  whom  the  low  morality  of  party  managers  would 
approve. 

The  completeness  and  permanence  of  this  change  has  been 
assured  by  the  method  which  now  prevails  of  choosing  the 
electors.  The  Constitution  leaves  the  method  to  each  State, 
and  in  the  earlier  days  many  States  entrusted  the  choice  to 

1  The  party  then  called  Republican  has  for  the  last  sixty  years  or  so  been 
called  Democratic.    The  party  now  called  Republican  did  not  arise  till  1854. 


THE   PRESIDENT  43 


their  legislatures.  But  as  democratic  principles  became  devel- 
oped, the  practice  of  choosing  the  electors  by  direct  popular 
vote,  originally  adopted  by  Virginia,  Pennsylvania,  and  Mary- 
land, spread  by  degrees  through  the  other  States,  till  by  1832 
South  Carolina  was  the  only  State  which  retained  the  method 
of  appointment  by  the  legislature.  She  dropped  it  in  1868, 
and  popular  election  now  rules  everywhere,  though  any  State 
may  go  back  to  the  old  plan  if  it  pleases.^  In  some  States  the 
electors  were  for  a  time  chosen  by  districts,  like  members  of 
the  House  of  Representatives.  But  the  plan  of  choice  by  a 
single  popular  vote  over  the  whole  of  the  State  found  increasing 
favour,  seeing  that  it  was  in  the  interest  of  the  party  for  the 
time  being  dominant  in  the  State.  In  1828  Maryland  was  the 
only  State  which  clung  to  district  voting.  She,  too,  adopted 
the  "  general  ticket "  system  in  1832,  since  which  year  it  was 
universal  until  1891,  when  Michigan  reverted  to  the  district 
system,  the  then  dominant  party  in  her  legislature  conceiving 
that  they  would  thereby  secure  some  districts,  and  therefore 
some  electors  of  their  own  colour,  although  they  could  not  carry 
the  State  as  a  whole.  (This  in  fact  happened  in  1892.)  Thus 
the  issue  comes  directly  before  the  people.  The  parties  Domi- 
nate their  respective  candidates,  in  manner  to  be  hereinafter 
described,- a  tremendous  "campaign"  of  stump  speaking,  news- 
paper writing,  street  parades,  and  torchlight  processions  sets  in 
and  rages  for  about  four  months  :  the  polling  for  electors  takes 
place  early  in  November,  on  the  same  day  over  the  whole  Union, 
and  when  the  result  is  known  the  contest  is  over,  because  the 
subsequent  meeting  and  voting  of  the  electors  in  their  several 
States  is  mere  matter  of  form. 

So  far  the  method  of  choice  by  electors  may  seem  to  be 
merely  a  roundabout  way  of  getting  the  judgment  of  the  people. 
It  is  more  than  this.  It  has  several  singuhxr  consequences, 
unforeseen  by  the  framers  of  the  Constitution.  It  has  made 
the  election  virtually  an  election  by  States,  for  the  system 
of  choosing  electors  by  "  general  ticket "  over  the  whole  State 
usually  causes  the  whole  weight  of  a  State  to  be  thrown  into  the 

1  Colorado,  not  having  time,  after  her  admission  to  the  Union  in  1876,  to 
provide  by  law  for  a  popular  choice  of  electors  to  vote  in  the  election  of  a 
President  in  the  November  of  that  year,  left  the  choice  to  the  legislature,  but 
now  elects  its  presidential  electors  by  popular  vote  like  the  other  States. 

2  See  the  chapter  on  National  Nominating  Conventions  in  Vol.  II. 


44  THE  NATIONAL   GOVERNMENT  part  i 


scale  of  one  candidate,  that  candidate  whose  list  of  electors  is 
carried  in  the  given  State.'  In  the  election  of  1884,  New  York 
State  had  thirty-six  electoral  votes.  Each  party  ran  its  list  or 
"  ticket "  of  thirty-six  presidential  electors  for  the  State,  who 
Avere  bound  to  vote  for  the  party's  candidate,  Mr.  Blaine  or 
Mr.  Cleveland.  The  Democratic  list  {i.e.  that  which  included 
the  thirty-six  Cleveland  electors)  was  carried  by  a  majority  of 
1100  out  of  a  total  poll  exceeding  1,100,000.  Thus,  all  the 
thirty-six  electoral  votes  of  New  York  were  secured  for  Mr. 
Cleveland,  and  these  thirty-six  determined  the  issue  of  the 
struggle  over  the  whole  Union,  in  which  nearly  10,000,000 
popular  votes  were  cast.  The  hundreds  of  thousands  of  votes 
given  in  New  York  for  the  Blaine  or  Republican  list  did  not 
go  to  swell  the  support  which  Mr.  Blaine  obtained  in  other 
States,  but  were  utterly  lost.  Hence  in  a  presidential  election, 
the  struggle  concentrates  itself  in  the  doubtful  States,  where 
the  great  parties  are  pretty  equally  divided,  and  is  languid  in 
States  where  a  distinct  majority  either  way  may  be  anticipated, 
because,  since  it  makes  no  difference  whether  a  minority 
be  large  or  small,  it  is  not  worth  while  to  struggle  hard 
to  increase  a  minority  which  cannot  be  turned  into  a  majority. 
And  hence  also  a  man  may  be,  and  has  been,-  elected  Presi- 
dent by  a  minority  of  popular  votes. 

When  such  has  been  the  fate  of  the  plan  of  1787,  it  need 
hardly  be  said  that  the  ideal  President,  the  great  and  good  man 
above  and  outside  party,  whom  the  judicious  and  impartial 
electors  were  to  choose,  has  not  been  secured.  The  ideal  was 
realized  once  and  once  only  in  the  person  of  George  Washing- 
ton.    His  successor  in  the  chair  (John  Adams)  was  a  leader 

1  A  list  is  usually  carried  entire  if  carried  at  all,  because  it  would  be  foolish 
for  the  partisans  of  a  candidate  to  vote  for  some  only  and  not  for  all  of  the 
electors  whose  only  function  is  to  vote  for  him.  However,  the  electors  on  a 
ticket  seldom  receive  exactly  the  same  number  of  popular  votes ;  and  thus  it 
sometimes  liappens  that  when  the  election  is  close,  one  or  two  electors  of  the 
beaten  party  find  their  way  in.  In  California  in  1880  one  out  of  the  six  electors 
in  the  Democratic  ticket,  being  personally  unpopular,  failed  to  be  carried,  though 
the  other  live  were.  Similarly  in  California,  Ohio  and  Oregon  in  1892  one  elector 
belonging  to  the  defeated  list  was  chosen,  and  in  North  Dakota  was  presented 
the  surprising  spectacle  of  the  Republican,  Democratic  and  "  Populist  "  parties 
each  winning  one  elector. 

■■^  Tliis  liapiiened  in  1876,  when  Mr.  Hayes  i-eceived,  on  the  showing  of  his  own 
partisans,  'jri'i.OlW  popular  votes  less  than  those  given  for  Mr.  Tilden ;  and  in 
1888,  when  Mr.  Harrison  was  95,534  popular  votes  behind  Mr.  Cleveland. 

It  is  an  odd  result  of  the  system  that  the  bestowal  of  the  suffrage  on  the 
negroes  has  operated  against  the  Republican  party  which  bestowed  it.  The 
Southern  States  received  in  respect  of  this  increase  in  their  voting  population 
'■M  additional  i)residential  votes,  and  these  have  in  the  four  latest  elections  (1880, 
1884,  1888,  189'2),  l)een  all  thrown  for  the  Democratic  candidate. 


CHAP.  V  THE   PKESIDENT  45 

of  one  of  the  two  great  parties  then  formed,  the  other  of  which 
has,  with  some  changes,  hxsted  down  to  onr  own  time.  Jeifer- 
son,  who  came  next,  was  the  chief  of  that  other  party,  and  his 
election  marked  its  triumph.  Nearly  every  subsequent  Presi- 
dent has  been  elected  as  a  party  leader  by  a  party  vote,  and 
has  felt  bound  to  carry  out  the  policy  of  the  men  who  put  him 
in  power.^  Thus  instead  of  getting  an  Olympian  President 
raised  above  faction,  America  has,  despite  herself,  reproduced 
the  English  system  of  executive  government  by  a  party 
majority,  reproduced  it  in  a  more  extreme  form,  because  in 
England  the  titular  head  of  the  State,  in  whose  name  adminis- 
trative acts  are  done,  stands  in  isolated  dignity  outside  party 
politics.  The  disadvantages  of  the  American  plan  are  patent ; 
but  in  practice  they  are  less  serious  than  might  be  expected, 
for  the  responsibility  of  a  great  office  and  the  feeling  that  he 
represents  the  whole  nation  tend  to  sober  and  control  the 
President.  Except  as  regards  patronage,  he  has  seldom  acted 
as  a  mere  tool  of  faction,  or  sought  to  abuse  his  administrative 
powers  to  the  injury  of  his  political  adversaries. 

The  Constitution  prescribes  no  limit  for  the  re-eligibility  of 
the  President.'  He  may  go  on  being  chosen  for  one  four: 
year  period  after  another  for  the  term  of  his  natural  life. 
But  tradition  has  supplied  the  pla(;e  of  law.  Elected  in  1789, 
Washington  submitted  to  be  re-elected  in  1792.  But  when  he 
had  served  this  second  term  he  absolutely  refused  to  serve  a 
third,  urging  the  risk  to  republican  institutions  of  suffering  the 
same  man  to  continue  constantly  in  office.  Jefferson,  Madison, 
Monroe,  and  Jackson  obeyed  the  precedent,  and  did  not  seek, 
nor  their  friends  for  them,  re-election  after  two  terms.  After 
them  no  President  was  re-elected,  except  Lincoln,  down  to 
General  Grant.  Grant  was  President  from  1869  to  1873,  and 
again  from  1873  to  1877,  then  came  Mr.  Hayes ;  and  in  1880 
an  attempt  was  made  to  break  the  unwritten  rule  in  Grant's 
favour.  Each  party,  as  will  be  more  fully  explained  hereafter, 
nominates  its  candidates  in  a  gigantic  party  assembly  called 
the  National  Convention.     In  the  Pvepublican  party  Conven- 

1  James  Monroe  Avas  chosen  President  in  1820  with  practical  unanimity ; 
but  this  was  because  one  of  the  two  parties  had  for  the  time  been  crushed  out 
and  started  no  candidate.  So  also  J.  Q.  Adams,  Monroe's  successor,  can  hardly 
be  called  a  party  leader.  After  him  the  party-chosen  Presidents  go  on  with- 
out interruption. 


46  THE   NATIONAL   GOVERNMENT  part  i 

tion  of  1880  a  powerful  i^roii])  of  the  delegates  put  forward 
Grant  for  nomination  as  the  party  candidate,  alleging  his  special 
services  as  a  ground  for  giving  him  the  honour  of  a  third  term. 
Had  there  not  been  among  the  Eepublicans  themselves  a  sec- 
tion personally  hostile  to  Grant,  or  rather  to  those  who 
surrounded  him,  the  attempt  might  have  succeeded,  though  it 
would  probably  have  involved  defeat  at  the  polls.  But  this 
hostile  section  found  the  prepossession  of  the  people  against  a 
third  term  so  strong  that,  by  appealing  to  the  established  tradi- 
tion, they  defeated  the  Grant  men  in  the  Convention,  and 
obtained  the  nomination  of  Mr.  Garfield,  Avho  was  victorious  at 
the  ensuing  election.  This  precedent  has  been  taken  as  prac- 
tically decisive  for  the  future,  because  General  Grant,  though 
liis  administration  had  been  marked  by  grave  faults,  was  an 
exce])tionally  popular  figure.  A  principle  affirmed  against  him 
is  not  likely  to  be  departed  from  in  favour  of  any  aspirant  for 
manj^  elections  to  come. 

The  Constitution  (Amendment  xii.,  which  in  this  point 
repeats  the  original  Art.  xi.  §  1)  requires  for  the  choice  of 
a  President  "a  majority  of  the  whole  number  of  electors 
appointed."  If  no  such  majority  is  obtained  by  any  candi- 
date, i.e.  if  the  votes  of  the  electors  are  so  scattered  among 
different  candidates,  that  out  of  the  total  number  (which 
in  1888  was  401,  and  is  now  under  the  Apportionment  Act 
of  1891,  444)  no  one  receives  an  absolute  majority  (i.e. 
at  least  223  votes),  the  choice  goes  over  to  the  House  of 
Eepresentatives,  who  are  empowered  to  choose  a  President 
from  among  the  three  candidates  who  have  received  the  largest 
number  of  electoral  votes.  In  the  House  the  vote  is  taken  by 
States,  a  majority  of  all  the  States  {i.e.  at  present  of  twenty- 
three  States  out  of  forty-four)  being  necessary  for  a  choice. 
As  all  the  members  of  the  House  from  a  State  have  but  one 
collective  vote,  it  follows  that  if  they  are  equally  divided 
among  themselves,  the  vote  of  that  State  is  lost.  Supposing 
this  to  be  the  case  in  half  the  total  number  of  States,  or 
supposing  the  States  so  to  scatter  their  votes  that  no  candidate 
receives  an  absolute  majority,  then  no  President  is  chosen, 
and  the  Vice-President  becomes  President. 

Only  twice  has  the  election  gone  to  the  House.  In  1800, 
when  the  rule   still   prevailed   that   the    candidate   with  the 


THE   PRESIDENT  47 


largest  number  of  votes  became  President,  and  the  candidate 
who  came  second  Vice-President,  Jefferson  and  Aaron  Burr 
received  the  same  number.  The  Jeffersonian  electors  meant 
to  make  him  President,  but  as  they  had  also  all  voted  for  Burr, 
there  was  a  tie.  After  a  long  struggle  the  House  chose 
Jefferson.  Feeling  ran  high,  and  had  Jefferson  been  kept  out 
by  the  votes  of  the  Federalist  party,  who  hated  him  more  than 
Burr,  his  partisans  might  possibly  have  taken  up  arms.^  In 
1824  Andrew  Jackson  had  99  electoral  votes,  and  his  three 
competitors  (J.  Q.  Adams,  Crawford,  and  Clay)  162  votes 
between  them.  The  House  chose  J.  Q.  Adams  by  a  vote  of 
thirteen  States  against  seven  for  Jackson  and  four  for  Craw- 
ford.^ In  this  mode  of  choice,  the  jiopular  will  may  be  still 
less  recognized  than  it  is  by  the  method  of  voting  through 
presidential  electors,  for  if  the  twenty-three  smaller  States  were 
through  their  representatives  in  the  House  to  vote  for  candi- 
date A,  and  the  twenty-one  larger  States  for  candidate  B,  A 
would  be  seated,  though  the  population  of  the  former  set  of 
States  is,  of  course,  very  much  below  that  of  the  latter. 

The  Constitution  seems,  though  its  language  is  not  explicit, 
to  have  intended  to  leave  the  counting  of  the  votes  to  the 
president  of  the  Senate  (the  A^ice-President  of  the  United 
States) ;  and  in  early  days  this  officer  superintended  the  count, 
and  decided  questions  as  to  the  admissibility  of  doubtful 
votes.  However,  Congress  has  in  virtue  of  its  right  to  be 
present  at  the  counting  assumed  the  further  right  of  deter- 
mining all  questions  which  arise  regarding  the  validity  of 
electoral  votes,  and  has,  it  need  hardly  be  said,  determined 
them  on  each  occasion  from  party  motives.  This  would  be 
all  very  well  were  a  decision  by  Congress  always  certain  of 
attainment.  But  it  often  happens  that  one  party  has  a  major- 
ity in  the  Senate,  another  party  in  the  House,  and  then,  as 
the  two  Houses  vote  separately  and  each  differently  from  the 

1  The  votes  of  two  States  were  for  a  long  time  divided ;  but  Hamilton's 
influence  at  last  induced  the  Federalist  members  to  vote  for  Jefferson  as  a 
person  less  dangerous  to  the  country  than  Burr.  His  action  —  highly  XDatriotic, 
for  Jefferson  was  his  bitter  enemy  —  cost  him  his  life  at  Burr's  hands. 

2  Clay,  unlucky  throughout  in  his  ambitions  for  the  presidency,  had  stood 
fourth  in  the  electoral  vote,  and  so  could  not  be  chosen  by  the  House.  Jack- 
son had  received  the  largest  popular  vote  in  those  States  where  electors  were 
chosen  by  the  people. 


48 


THE    NATIONAL   GOVERNMENT 


Other,  a  deadlock  results.  I  must  pass  by  the  minute  and  often 
tedious  controversies  which  have  arisen  on  these  matters.  But 
one  case  deserves  special  mention,  for  it  illustrates  an  ingrained 
and  formidable  weakness  of  the  present  electoral  system. 

In  1876,  jNIr.  Hayes  was  the  Republican  candidate  for  the 
presidency,  Mr.  Tilden  the  Democratic.  The  former  carried 
his  list  of  electors  in  seventeen  States,  whose  aggregate  electors 
numbered  163,  and  the  latter  carried  his  list  also  in  seventeen 
States,  whose  aggregate  electors  numbered  184.  (As  the  total 
number  of  electors  was  then  369,  184  was  Avithin  one  of  being 
a  half  of  that  number.)  Four  States  remained  out  of  the  total 
thirty-eight,  and  in  each  of  these  four  two  sets  of  persons  had 
been  chosen  by  popular  vote,  each  set  claiming,  on  grounds 
too  complicated  to  be  here  explained,  to  be  the  duly  chosen 
electors  from  those  States  respectively.^  The  electoral  votes 
of  these  four  States  amounted  to  twenty-two,  so  that  if  in  any 
one  of  them  the  Democratic  set  of  electors  had  been  found  to 
have  been  duly  chosen,  the  Democrats  would  have  secured  a 
majority  of  electoral  votes,  whereas  even  if  in  all  of  them 
Republican  electors  had  been  chosen,  the  Republican  electors 
would  have  had  a  majority  of  one  only.  In  such  circumstances 
the  only  course  for  the  Republican  leaders,  as  good  party  men, 
was  to  claim  all  these  doubtful  States.  This  they  promptly 
didj  —  party  loyalty  is  the  last  virtue  that  deserts  politicians, 
—  and  the  Democrats  did  the  like. 

Meanwhile  the  electors  met  and  voted  in  their  respective 
States.  In  the  four  disputed  States  the  two  sets  of  electors 
met,  voted,  and  sent  up  to  Washington,  from  each  of  these 
four,  double  returns  of  the  electoral  votes.  The  result  of  the 
election  evidently  depended  on  the  question  which  set  of 
returns  should  be  admitted  as  being  the  true  and  legal  returns 
from  the  four  States  respectively.  The  excitement  over  the 
whole  Union  was  intense,  and  the  prospect  of  a  peaceful  set- 
tlement remote,  for  the  Constitution  appeared  to  provide  no 
means  of  determining  the  legal  questions  involved.     Congress, 

1  In  Oregon  the  question  was  whether  one  of  the  chosen  electors  was  dis- 
qualified because  he  was  a  post  master.  In  Florida  there  were  complaints  of 
fraud,  in  South  Cai-olina  of  intimidation,  in  Louisiana  two  rival  State  govern- 
ments existed,  each  claiming  the  right  to  certify  electoral  returns.  There  had 
doubtless  been  a  good  deal  of  fraud  and  some  violence  in  several  of  the  South- 
ern States. 


CHAP.  V  THE   PRESIDENT  49 

as  remarked  above,  had  in  some  previous  instances  assumed 
jurisdiction,  but  seeing  tliat  the  Republicans  had  a  majority  in 
tlie  Senate,  and  the  Democrats  in  tlie  House  of  Eepresenta- 
tives,  it  was  clear  that  the  majority  in  one  House  would  vote 
for  admitting  the  Republican  returns,  the  majority  in  the  other 
for  admitting  the  Democratic.  Negotiations  between  the  lead- 
ers at  last  arranged  a  method  of  escape.  A  statute  was  passed 
creating  an  electoral  commission  of  five  Senators,  five  members 
of  the  House  of  Representatives,  and  five  Justices  of  the 
Supreme  Court,  who  were  to  determine  all  questions  as  to  the 
admissibility  of  electoral  votes  from  States  sending  up  double 
returns.^  Everything  now  turned  on  the  composition  of  the 
electoral  Commission,  a  body  such  as  had  never  before  been 
created.  The  Senate  appomted  three  Republicans  and  two 
Democrats.  The  House  of  Representatives  appointed  three 
Democrats  and  two  Republicans.  So  far  there  was  an  exact 
balance.  The  statute  had  indicated  four  of  the  Justices  who 
were  to  sit,  two  Republicans  and  two  Democrats,  and  had  left 
these  four  to  choose  a  fifth.  This  fifth  was  the  odd  man 
whose  casting  vote  would  turn  the  scale.  The  four  Justices 
chose  a  Republican  Justice,  and  this  choice  practically  settled 
the  result,  for  every  vote  given  by  the  members  of  the  Com- 
mission Avas  a  strict  party  vote.^  They  were  nearly  all  law- 
yers, and  had  all  taken  an  oath  of  impartiality.  The  legal 
questions  were  so  difficult,  and  for  the  most  part  so  novel,  that 
it  was  possible  for  a  sound  lawyer  and  honest  man  to  take  in 
each  case  either  the  view  for  which  the  Republicans  or  that 
for  which  the  Democrats  contended.  Still  it  is  interesting  to 
observe  that  the  legal  judgment  of  every  commissioner  hap- 
pened to  coincide  with  his  party  proclivities.^  All  the  points 
in  dispute  were  settled  by  a  vote  of  eight  to  seven  in  favour 

1  Power  was  reserved  to  Congress  to  set  aside  by  a  vote  of  both  Houses  the 
decisions  of  the  Commission,  but  as  the  two  Houses  dii^ered  in  every  case, 
the  Democrats  of  the  House  always  voting  agaiust  each  determination  of  the 
Commission,  and  the  Republicans  of  the  Senate  supporting  it,  this  provision 
made  no  difference. 

2  The  Commission  decided  unanimously  that  the  Democratic  set  of  electors 
from  South  Carolina  were  not  duly  chosen,  but  they  divided  eight  to  seven  as 
usual  on  the  question  of  recognizing  the  Republican  electors  of  that  State. 

3  The  same  phenomenon  has  been  observed  in  committees  of  the  English 
House  of  Commons  appointed  to  deal  with  purely  legal  questions,  or  to  sit  in 
a  virtually  judicial  capacity. 

VOL.  I  E 


50  THE   NATIONAL   GOVERNMENT 


of  the  returns  transmitted  by  the  Republican  electors  in  the 
four  disputed  States,  and  Mr.  Hayes  was  accordingly  declared 
(hily  elected  by  a  majority  of  185  electoral  votes  against  184. 
The  decision  may  have  been  right  as  matter  of  law  —  it  is 
still  debated  by  lawyers,  — and  there  had  been  so  much  force 
and  fraud  on  both  sides  in  Florida,  Louisiana,  and  South  Caro- 
lina, that  no  one  can  say  on  which  side  substantial  justice  lay. 
Mr.  Tilden  deserves  the  credit  of  having  induced  his  friends 
both  to  agree  to  a  compromise  slightly  to  his  own  disadvan- 
tage, and  to  accept  peaceably,  though  with  loud  and  long  com- 
plaints, a  result  Avhich  baffled  their  hopes.  I  tell  the  story 
here  because  it  points  to  a  grave  danger  in  the  presidential 
system.  The  stake  played  for  is  so  high  that  the  temptation 
to  fraud  is  immense ;  and  as  the  ballots  given  for  the  electors 
by  the  people  are  received  and  counted  by  State  authorities 
under  State  laws,  an  unscrupulous  State  faction  has  opportimi- 
ties  for  fraud  at  its  command.  In  1 887  Congress,  having  had  the 
subject  pressed  on  its  attention  by  successive  Presidents,  took 
steps  to  provide  against  a  recurrence  of  the  danger  described. 
It  passed  a  statute  enacting  that  tribunals  appointed  in  and  by 
each  State  shall  determine  what  electoral  votes  from  the  State 
are  legal  votes ;  and  that  if  the  State  has  ajDpointed  no  such 
tribunal,  the  two  Houses  of  Congress  shall  determine  which 
votes  (in  case  of  double  returns)  are  legal.  If  the  Houses 
differ  the  vote  of  the  State  is  lost.  It  is,  of  cou.rse,  possible 
under  this  plan  that  the  State  tribunal  may  decide  unfairly ; 
but  the  main  thing  is  to  secure  some  decision.  Unfairness  is 
better  than  uncertainty. 

A  President  is  removable  during  liis  term  of  office  only  by 
means  of  impeachment,  a  procedure  familiar  on  both  sides  of 
the  Atlantic  in  1787,  when  the  famous  trial  of  Warren  Hast- 
ings was  still  lingering  on  at  Westminster.  Impeachment, 
which  had  played  no  small  part  in  the  development  of  English 
liberties,  was  deemed  by  the  Americans  of  those  days  a  valuable 
element  in  their  new  constitution,  for  it  enabled  Congress  to 
depose,  and  the  fear  of  it  might  be  expected  to  restrain,  a  trea- 
sonably ambitious  President.   In  obedience  to  State  precedents,^ 

1  Impeachment  was  taken,  not  directly  from  English  usage,  but  rather  from 
the  Constitutions  of  Virginia  (177G) ,  and  Massachusetts  (17S0) ,  which  had,  no 
doubt  following  the  example  of  England,  established  this  remedy  against  cul- 
pable otKcials. 


THE   PRESIDENT  51 


it  is  by  the  House  of  Kepresentatives  that  the  President  is 
impeached,  aud  by  the  Senate,  sitting  as  a  law  court,  with 
the  chief  justice  of  the  Supreme  court,  the  highest  legal 
official  of  the  country,  as  presiding  officer,  that  he  is  tried.  A 
two-thirds  vote  is  necessary  to  conviction,  the  effect  of  which 
is  simply  to  remove  him  from  and  disqualify  him  for  office, 
leaving  him  "liable  to  indictment,  trial,  judgment,  and  punish- 
ment, according  to  law"  (Constitution,  Art.  i.  §  3,  Art.  ii.  §  4). 
The  impeachable  offences  are  "treason,  bribery,  or  other  high 
crimes  and  misdemeanours,"  an  expression  which  some  have 
held  to  cover  only  indictable  offences,  while  others  extend  it 
to  include  acts  done  in  violation  of  official  duty  and  against 
the  interests  of  the  nation,  such  acts,  in  fact,  as  were  often 
grounds  for  the  English  impeachments  of  the  seventeenth  cen- 
tury. As  yet,  Andrew  Johnson  is  the  only  President  who  has 
been  impeached.  His  foolish  and  headstrong  conduct  made 
his  removal  desirable,  but  as  it  was  doubtful  whether  any 
single  offence  justified  a  conviction,  several  of  the  senators 
politically  opposed  to  him  voted  for  acquittal.^  A  two-thirds 
majority  not  having  been  secured  upon  any  one  article  (the 
numbers  being  thirty-five  for  conviction,  nineteen  for  acquit- 
tal) he  was  declared  acquitted. 

In  case  of  the  removal  of  a  President  by  impeachment,  or  of 
his  death,  resignation,  or  inability  to  discharge  his  duties,  the 
Vice-President  steps  into  his  place.  The  Vice-President  is 
chosen  at  the  same  time,  by  the  same  electors,  and  in  the  same 
manner  as  the  President.  His  only  functions  are  to  preside 
in  the  Senate  and  to  succeed  the  President.  Failing  both 
President  and  Vice-President  it  was  formerly  provided  by  stat- 
ute, not  by  the  Constitution,  that  the  presiding  officer  for  the 
time  being  of  the  Senate  should  succeed  to  the  presidency, 
and,  failing  him,  the  Speaker  of  the  House  of  Representatives. 
To  this  plan  there  was  the  obvious  objection  that  it  might 
throw  power  into  the  hands  of  the  party  opposed  to  that  to 
which  the  lately  deceased  President  belonged ;  and  it  has  there- 
fore been  now  (by  an  Act  of  1886)  enacted  that  on  the  death 
of  a  President  (including  a  Vice-President  who  has  succeeded 

1  They  may  have  doubted  the  expediency  of  displacing  him  at  that  moment ; 
or  their  political  prepossessions  against  him  may  have  been  restrained  by  a 
doubt  whether  the  evidence  was  sufficient  to  support  a  quasi-criminal  charge. 


62  THE   NATIONAL   GOVERNMENT  part  i 

to  the  Presidency)  the  secretary  of  state  shall  succeed,  and 
after  him  other  officers  of  the  Administration,  in  the  order  of 
their  rank.  Four  Presidents  (Harrison,  Taylor,  Lincoln,  Gar- 
lit'l(l)  have  died  in  office,  and  been  succeeded  by  Vice-Presidents, 
and  in  the  first  and  third  of  these  instances  the  succeeding  Vice- 
President  has  reversed  the  policy  of  his  predecessor,  and  be- 
come involved  in  a  quarrel  with  the  party  which  elected  him, 
such  as  has  never  yet  broken  out  between  a  man  elected  to  be 
President  and  his  party.  In  practice  very  little  pains  are 
bestowed  on  tlie  election  of  a  Vice-President.  The  convention 
which  selects  the  party  candidates  usually  gives  the  nomina- 
tion to  this  post  to  a  man  in  the  second  rank,  sometimes  as  a 
consolation  to  a  disappointed  candidate  for  the  presidential 
nomination,  sometimes  to  a  friend  of  such  a  disappointed  can- 
didate in  order  to  "  placate  "  his  faction,  sometimes  as  a  com- 
pliment to  an  elderly  leader  who  is  personally  popular.  If 
the  party  carries  its  candidate  for  President,  it  also  as  a  mat- 
ter of  course  carries  its  candidate  for  Vice-President,  and  thus 
if  the  President  happens  to  die,  a  man  of  small  account  may 
step  into  the  chief  magistracy  of  the  nation. 


CHAPTER  VI 

PRESIDENTIAL    POWERS    AND    DUTIES 

The  powers  and  duties  of  the  President  as  head  of  the  Federal 
executive  are  the  following :  — 

Command  of  Federal  army  and  na\y  and  of  militia  of  several 

States  when  called  into  service  of  the  United  States. 
Power  to  make  treaties,  but  with  advice  and  consent  of  the 
Senate,  i.e.  consent  of  two-thirds  of  senators  present. 
"  to  appoint  ambassadors  and  consuls,  judges  of  Supreme 
court,  and  all  other  higher  Federal  officers,  but  with 
advice  and  consent  of  Senate. 
"  to  grant  reprieves  and  pardons  for  offences  against  the 

United  States,  except  in  cases  of  impeachment. 
"  to  convene  both  Houses  on  extraordinary  occasions. 
"  to  disagree  with  {i.e.  to  send  back  for  re-consideration) 
any  bill  or  resolution  passed  by  Congress,  but  subject  to 
the  power  of  Congress  to  finally  pass  the  same,  after  re- 
consideration, by  a  two-thirds  majority  in  each  House. 
Duty  to  inform  Congress  of  the  state  of  the  Union,  and  to 
recommend  measures  to  Congress. 
"  to  commission  all  the  officers  of  the  United  States. 
"  to  receive  foreign  ambassadors. 
"  to  take  care  that  the  laws  be  faithfully  executed. 
These  functions  group  themselves  into  four  classes  — 
Those  which  relate  to  foreign  affairs. 
Those  which  relate  to  domestic  administration. 
Those  which  concern  legislation. 
The  power  of  appointment. 
The  conduct  of   foreign   policy   would  be  a  function  of  the 
utmost  importance   did   not   America,  happy  America,  stand 
apart  in  a  world  of  her  own,  unassailable  by  European  powers, 
easily  superior  to  the  other  republics  of  her  continent,  but  with 

53 


54  THE   NATIONAL   GOVERNMENT 


no  present  motive  for  aggression  upon  them.  The  President, 
however,  has  not  a  free  hand  in  foreign  policy.  He  cannot 
dechare  war,  for  that  belongs  to  Congress,  though  to  be  sure  he 
may,  as  President  Polk  did  in  1845-6,  bring  affairs  to  a  point 
at  which  it  is  hard  for  Congress  to  refrain  from  the  declaration. 
Treaties  require  the  approval  of  two-thirds  of  the  Senate ;  and 
in  order  to  secure  this,  it  is  usually  necessary  for  the  Executive 
to  be  in  constant  communication  with  the  Foreign  Affairs  Com- 
mittee of  that  body.  The  House  of  Representatives  has  no 
legal  right  to  interfere,  but  it  often  passes  resolutions  enjoin- 
ing or  disapproving  a  particular  line  of  policy ;  and  sometimes 
invites  the  Senate  to  coincide  in  these  expressions  of  opinion, 
which  then  become  weightier.  The  President  is  nowise  bound 
by  such  resolutions,  and  has  more  than  once  declared  that  he 
does  not  regard  them.  But  as  some  treaties,  especially  com- 
mercial treaties,  cannot  be  carried  out  except  by  the  aid  of 
statutes,  and  as  no  war  can  be  entered  on  without  votes  of 
money,  the  House  of  Representatives  can  sometimes  indirectly 
make  good  its  claim  to  influence.  Many  delicate  questions, 
some  of  them  not  yet  decided,  have  arisen  upon  these  points, 
^vhich  the  Constitution  has,  perhaps  unavoidably,  left  in  half- 
light.  In  all  free  countries  it  is  most  difficult  to  define  the 
respective  spheres  of  the  legislature  and  executive  in  foreign 
affairs,  for  while  publicity  and  parliamentary  control  are  needed 
to  protect  the  people,  promptitude  and  secrecy  are  the  condi- 
tions of  diplomatic  success.  Practically,  hoAvever,  and  for  the 
purposes  of  ordinary  business,  the  President  is  independent  of 
the  House,  while  the  Senate,  though  it  can  prevent  his  settling 
anything,  cannot  keep  him  from  unsettling  everytliuig.  He, 
or  rather  his  secretary  of  state,  for  the  President  has  rarely 
leisure  to  give  close  or  continuous  attention  to  foreign  jDolicy, 
retains  an  unfettered  initiative,  by  means  of  which  he  may 
embroil  the  country  abroad  or  excite  passion  at  home. 

The  domestic  authority  of  the  President  is  in  time  of  peace 
small,  because  by  far  the  larger  part  of  law  and  administration 
belongs  to  the  State  governments,  and  because  Federal  admin- 
istration is  regulated  by  statutes  which  leave  little  discretion  to 
the  executive.  In  war  time,  however,  and  especially  in  a  civil 
war,  it  expands  with  portentous  speed.  Both  as  commander-in- 
chief  of  the  army  and  navy,  and  as  charged  with  the  "faithful 


PRESIDENTIAL   POWERS   AND   DUTIES 


execution  of  the  laws,"  the  President  is  likely  to  be  led  to 
assume  all  the  powers  which  the  emergency  requires.  How 
much  he  can  legally  do  without  the'  aid  of  statutes  is  disputed, 
for  the  acts  of  President  Lincoln  during  the  earlier  jDart  of  the 
War  of  Secession,  including  his  proclamation  suspending  the 
writ  of  Habeas  Corpus^  were  subsequently  legalized  by  Con- 
gress ;  but  it.  is  at  least  clear  that  Congress  can  make  him,  as 
it  did  make  Lincoln,  almost  a  dictator.  And  how  much  the 
war  power  may  include  appears  in  this,  that  by  virtue  of  it 
and  without  any  previous  legislative  sanction  President  Lincoln 
issued  his  emancipation  proclamations  of  1862  and  1863,  declar- 
ing all  slaves  in  the  insurgent  States  to  be  thenceforth  free, 
although  these  States  were  deemed  to  be  in  point  of  law  still 
members  of  the  Union.^ 

It  devolves  on  the  executive  as  well  as  on  Congress  to  give 
effect  to  the  provisions  of  the  Constitution  whereby  a  republi- 
can form  of  government  is  guaranteed  to  every  State  -,  and  a 
State  may,  on  the  application  of  its  legislature,  or  executive 
(when  the  legislature  cannot  be  convened),  obtain  protection 
against  domestic  violence.  Where,  as  in  Louisiana  in  1873, 
there  are  two-  governments  disputing  by  force  the  control  of  a 
State,  or  where  an  insurrection  breaks  out,  as  in  Khode  Island 
in  1840-2,  this  power  becomes  an  important  one,  for  it  involves 
the  employment  of  troops,  and  enables  the  President  (since  it 
is  usually  on  him  that  the  duty  falls)  to  establish  the  govern- 
ment he  prefers  to  recognize.^  Fortunately  the  case  has  been 
of  rare  occurrence. 

1  The  proclamation  was  expressed  not  to  apply  to  States  which  had  not 
seceded,  nor  to  such  parts  of  seceding  States  as  had  then  already  been  recon- 
quered by  the  northern  armies.  Slavery  was  finally  legally  extinguished 
everywhere  by  the  thirteenth  constitutional  amendment  of  1865'. 

2  In  the  Louisiana  case  Federal  troops  were  employed :  in  tlie  Rhode  Island 
case  the  President  authorized  the  employment  of  the  militia  of  Massachusetts 
and  Connecticut,  hut  the  Rhode  Island  troops  succeeded  in  suppressing  the 
rebellion,  whose  leader  was  ultimately  convicted  of  high  treason  against  the 
State  and  imprisoned.  See  as  to  the  guarantee  of  order  and  republican  gov- 
ernment in  the  States,  the  case  of  Luther  v.  Borden  (7  How.  42)  and  the 
instructive  article  of  Judge  T.  M.  Cooley  in  the  International  Bevieio  for 
January  1875.  He  observes:  "  The  obligation  to  guarantee  a  republican  form 
of  government  to  the  States,  and  to  protect  them  against  invasion  and  domes- 
tic violence,  is  one  imposed  upon  '  the  United  States.'  The  implication  is  that 
the  duty  was  not  to  depend  for  its  fulfilment  on  the  legislative  department 
exclusively,  but  that  all  departments  of  the  government,  or  at  least  more  than 


THE   NATIONAL   GOVERNMENT 


The  President  has  the  right  of  speaking  to  the  nation  by 
addresses  or  protdaniations,  a  right  not  expressly  conferred 
by  the  Constitution,  but  inherent  in  his  position.  Occasions 
requiring  its  exercise  are  uncommon.  On  entering  office,  it  is 
usual  for  the  new  magistrate  to  issue  an  inaugural  address, 
stating  his  views  on  current  public  questions.  Washington 
also  put  forth  a  farewell  address,  but  Jackson's  imitation  of 
that  famous  document  was  condemned  as  a  piece  of  vain-glory. 
It  is  thought  bad  taste  for  the  President  to  deliver  stump 
speeches,  and  Andrew  Johnson  injured  himself  by  the  prac- 
tice. But  he  retains  that  and  all  other  rights  of  the  ordinary 
citizen,  including  the  right  of  voting  at  Federal  as  well  as 
State  elections  in  his  own  State.  And  he  has  sometimes  taken 
an  active,  though  a  covert,  share  in  the  councils  of  his  own 
party. 

The  position  of  the  President  as  respects  legislation  is  a 
peculiar  one.  The  King  of  England  is  a  member  of  the  Eng- 
lish legislature,  because  Parliament  is  in  theory  his  Great 
Council  which  he  summons  and  in  which  he  presides,  hearing 
the  complaints  of  the  people,  and  devising  legislative  reme- 
dies.^ It  is  as  a  member  of  the  legislature  that  he  assents  to 
the  bills  it  presents  to  him,  and  the  term  "  veto  power,"  since 
it  suggests  an  authority  standing  outside  to  aj^prove  or  reject, 
does  not  happily  describe  his  right  of  dealing  with  a  measure 
which  has  been  passed  by  the  council  over  which  he  is  deemed 
to  preside,  though  he  now  no  longer  appears  in  it  except  at  the 
beginning  and  ending  of  a  session.  The  American  President 
is  not  a  member  of  either  House  of  Congress.  He  is  a  sepa- 
rate authority  whom  the  people,  for  the  sake  of  protecting 
themselves  against  abvises  of  legislative  power,  have  associated 

one,  were  or  might  be  charged  with  some  duty  in  this  regard.  It  has  been 
Congress  which  hitherto  has  assumed  to  act  upon  the  guarantee,  while  appli- 
cation for  protection  against  domestic  violence  has,  on  the  other  hand,  been 
made  to  the  President.  From  the  nature  of  the  case  the  judiciary  can  have 
little  or  nothing  to  do  with  questions  arising  under  this  provision  of  the 
Constitution.'' 

1  It  need  hardly  be  said  that  the  actual  separation  of  Parliament  into  two 
branches,  each  of  which  deliberates  apart  under  the  presidency  of  its  own 
chairman  (the  chairman  of  one  House  named  by  the  sovereign,  whom  he 
represents,  that  of  the  other  chosen  by  the  House,  but  approved  by  the  sover- 
eisnl.  does  not  exclude  the  tlieory  that  the  King  Lords  and  Commons  consti- 
tute the  common  council  of  the  nation. 


PRESIDENTIAL   POWERS   AND   DUTIES  57 


with  tlie  legislature  for  the  special  purpose  of  arresting  its 
action  by  his  disapproval.^  So  again  the  King  of  England  can 
initiate  legislation.  According  to  the  older  Constitution,  stat- 
utes purported  to  be  made,  and  were  till  the  middle  of  the 
fifteenth  century  actually  made,  by  him,  but  "with  the  advice 
and  consent  of  the  Lords  Spiritual  and  Temporal  and  of  the 
Commons."  ^  According  to  modern  practice,  nearly  all  impor- 
tant measures  are  brought  into  Parliament  by  his  ministers, 
and  nominally  under  his  instructions.  The  American  Presi- 
dent cannot  introduce  bills,  either  directly  or  through  his  min- 
isters, for  they  do  not  sit  in  Congress."  All  that  the  Constitu- 
tion permits  him  to  do  in  this  direction  is  to  inform  Congress 
of  the  state  of  the  nation,  and  to  recommend  the  measures 
which  his  experience  in  administration  shows  to  be  necessary. 
This  latter  function  is  discharged  by  the  messages  which  the 
President  addresses  to  Congress.  The  most  important  is  that 
sent  at  the  beginning  of  each  session. 

George  Washington  used  to  deliver  his  addresses  orally,  like 
an  English  king,  and  drove  in  a  coach  and  six  to  open  Congress 
with  something  of  an  English  king's  state.  But  JefEerson,  when 
his  turn  came  in  1801,  whether  from  republican  simplicity,  as 
he  said  himself,  or  because  he  was  a  poor  speaker,  as  his  critics 
said,  began  the  practice  of  sending  communications  in  writing; 

1  The  term  "  veto  "  was  not  used  in  the  Convention  of  1787 :  men  talked  of 
the  President's  "  qualified  negative." 

2  In  the  fourteenth  century  English  statutes  are  expressed  to  be  made  by 
the  king,  "  par  couseil  et  par  assentement "  of  the  lords  and  the  commonalty. 
The  words  "  by  the  authority  "  of  the  Lords  and  Commons  first  appear  in  the 
eleventh  year  of  Heury  VI.  (1433),  and  from  the  first  of  Henry  VTI.  (1485) 
downwards  a  form  substantially  the  same  as  the  present  is  followed,  viz.  "Be 
it  enacted  by  the  Queen's  most  excellent  Majesty,  by  and  with  the  advice  and 
consent  of  the  Lords  Spiritual  and  Temporal,  and  Commons,  and  by  the 
authority  of  the  same." 

3  Nevertheless,  the  Congressional  Globe  for  July  14,  1862,  records  that 
"  The  President  {pro  tempore)  of  the  Senate  presented  the  following  message 
from  the  President  of  the  United  States:  ' Fellow  Citizens  of  the  Senate  and 
the  House  of  Representatives:  Herewith  is  the  draft  of  a  bill  to  compensate 
any  State  which  may  abolish  slavery  within  its  limits,  the  passage  of  vrhich, 
substantially  as  presented,  I  respectfully  and  earnestly  recommend.  Abraham 
Lincoln.'"  The  bill  was  thereupon  read  a  second  time,  and  a  debate  arose 
as  to  whether  the  President  had  a  right  to  submit  bills.  In  the  House  the 
message  as  a  whole  was  referred  to  the  Special  Committee  on  Emancipation. 
This  seems  to  be  the  only  instance  in  which  a  President  has  submitted  a  draft 
bill. 


58  THE   NATIONAL   GOVERNMENT 


and  this  lias  been  followed  ever  since.  The  message  usually 
discusses  the  leading  questions  of  the  moment,  indicates  mis- 
cliiefs  needing  a  remedy,  and  suggests  the  requisite  legislation. 
But  as  no  bills  are  submitted  by  the  President,  and  as,  even 
were  he  to  submit  them,  no  one  of  his  ministers  sits  in  either 
House  to  explain  and  defend  them,  the  message  is  a  shot  in  the 
air  without  practical  result.  It  is  rather  a  manifesto,  or  decla- 
ration of  opinion  and  policy,  than  a  step  towards  legislation. 
Congress  is  not  moved :  members  go  their  own  ways  and  bring 
in  their  own  bills. 

Far  more  effective  is  the  President's  part  in  the  last  stage  of 
legislation,  for  here  he  finds  means  provided  for  carrying  out 
his  will.  When  a  bill  is  presented  to  him,  he  may  sign  it,  and 
therewith  make  it  law.  If,  however,  he  disapproves  of  it,  he  re- 
turns it  within  ten  days  to  the  House  m  which  it  originated, 
with  a  statement  of  his  grounds  of  disapproval.  If  both  Houses 
take  up  the  bill  again  and  pass  it  by  a  two-thirds  majority  in 
each  House,  it  becomes  law  forthwith  without  requiring  the 
President's  signature.^  If  it  fails  to  obtain  this  majority  it 
drops. 

Considering  that  the  arbitrary  use,  by  George  III.  and  his 
colonial  governors,  of  the  power  of  refusing  bills  passed  by  a 
colonial  legislature  had  been  a  chief  cause  of  the  Revolution  of 
1776,  it  is  to  the  credit  of  the  Americans  that  they  inserted 
this  apparently  undemocratic  provision  (which,  however,  ex- 
isted in  the  Constitution  of  Massachusetts  of  1780)  in  the  Con- 
stitution of  1789.-  It  has  worked  wonderfully  well.  Most 
Presidents  have  employed  it  sparingly,  and  only  where  they 
felt  either  that  there  was  a  case  for  delay,  or  that  the  country 
would  support  them  against  the  majority  in  Congress.  •  Per- 
verse or  headstrong  Presidents  have  been  generally  defeated 
by  the  use  of  the  two-thirds  vote  to  pass  the  bill  over  their 
objections.  Washington  "  returned  "  or  vetoed  two  bills  only; 
his  successors  down  till  1830,  seven.  Jackson  made  a  bolder 
use  of  his  power  —  a  use  which  his  opponents  denounced  as 
opposed  to  the  spirit  of  the  Constitution  :  yet  until  the  accession 

1  If  Congress  adjourns  within  tlie  ten  days  allowed  the  President  for  return- 
ing the  hill  it  is  lost.  His  retaining  it  under  these  circumstances  at  the  end 
of  a  session  is  popvilarly  called  a  "  pocket  veto." 

^  The  New  York  State  Constitution  of  1777  gave  a  veto  to  the  Governor  and 
Judges  of  the  highest  Court  actiug  together. 


CHAP.  VI         PRESIDENTIAL   POWERS   AND   DUTIES  59 

of  President  Cleveland  in  1885  the  total  number  vetoed  was 
only  132  (including  the  so-called  pocket  vetoes)  in  ninety- 
six  years.^  Mr.  Cleveland  vetoed  301,  the  great  majority 
being  bills  for  granting  pensions  to  persons  who  served  in 
the  northern  armies  during  the  War  of  Secession.^  Though 
many  of  these  bills  had  been  passed  with  little  or  no  opposi- 
tion, two  only  were  repassed  over  his  veto.  The  only  Presi- 
dent who  acted  recklessly  was  Andrew  Johnson.  In  the 
course  of  his  three  years'  struggle  with  Congress,  he  returned 
the  chief  bills  passed  for  carrying  out  their  Keconstruction 
policy,  but  as  the  majority  opposed  to  him  ^vas  large  in  both 
Houses,  these  bills  were  promptly  passed  over  his  veto. 

So  far  from  exciting  the  displeasure  of  the  people  by  resist- 
ing the  will  of  their  representatives,  a  President  generally 
gains  popularity  by  the  bold  use  of  his  veto  power.  It  con- 
veys the  impression  of  firmness ;  it  shows  that  he  has  a  view 
and  does  not  fear  to  give  effect  to  it.  The  nation,  which  has 
often  good  grounds  for  distrusting  Congress,  a  body  liable  to 
be  moved  by  sinister  private  influences,  or  to  defer  to  the 
clamour  of  some  noisy  section  outside,  looks  to  the  man  of  its 
choice  to  keep  Congress  in  order,  and  has  approved  the  exten- 
sion which  practice  has  given  to  the  power.  The  President's 
"qualified  negative"  was  proposed  by  the  Convention  of  1787 
for  the  sake  of  protecting  the  Constitution,  and  in  particu- 
lar, the  executive,  from  Congressional  encroachments.  It  has 
now  come  to  be  used  on  grounds  of  general  expediency,  to 
defeat  any  measure  which  the  Executive  deems  pernicious 
either  in  principle  or  in  its  probable  results. 

1  Of  these  132  (some  reckon  128),  21  emanated  from  Johnson  and  43  from 
Grant,  while  John  Adams,  Jefferson,  J.  Q.  Adams,  Van  Buren,  Taylor,  and 
Fillmore  sent  no  veto  messages  at  all.  (W.  H.  Harrison  and  Garfield  died 
before  they  had  any  opportunity.,^  Among  the  most  important  vetoes  were 
those  of  several  reconstruction  hills  by  Johnson  (these  were  re-passed  by  two- 
thirds  votes) ,  that  of  a  paper  currency  measure,  the  so-called  Inflation  Bill, 
by  Grant,  and  that  of  the  Dependent  Pension  Bill  by  Cleveland.  No  bill  was 
passed  "  over  a  veto  "  until  1845.  Presidents  have  occasionally  (e.//.  Lincoln 
more  than  once)  in  signing  a  bill  stated  objections  to  it  which  Congress  has 
thereupon  obviated  by  supplementary  legislation. 

2  Out  of  these  433  vetoed  bills  only  29  were  passed  over  the  veto,  15  of  these 
in  the  time  of  Johnson. 

The  numbers  are  differently  reckoned  by  different  authorities.  I  have  here 
followed  the  calculation  of  Mr.  E.  C.  Mason,  in  his  clear  and  useful  essay  in 
Harvard  Historical  Monographs,  Boston,  1891. 


GO  THE  NATIONAL  GOVERNMENT 


The  reasons  why  the  veto  provisions  of  the  Constitution 
have  succeeded  appear  to  be  two.  One  is  that  the  President, 
being  an  elective  and  not  a  hereditary  magistrate,  is  responsible 
to  the  people,  and  has  the  weight  of  the  people  behind  him. 
The  people  regard  him  as  an  indispensable  check,  not  only 
upon  the  haste  and  heedlessness  of  their  representatives,  the 
faults  which  the  f ramers  of  the  Constitution  chiefly  feared,  but 
upon  their  tendency,  a  tendency  whose  mischievous  force  ex- 
perience has  revealed,  to  yield  either  to  pressure  from  any 
section  of  their  constituents,  or  to  temptations  of  a  private 
nature.  The  other  reason  is  that  a  veto  need  never  take  effect 
unless  there  is  a  minority  exceeding  one-third  in  one  or  other 
House  of  Congress,  which  agrees  with  the  President.  Sxich  a 
minority  shares  his  responsibility  and  encourages  him  to  resist 
the  threats  of  a  majority  :  while  if  he  has  no  substantial  sup- 
port in  public  opinion,  his  opposition  is  easily  overborne. 
Hence  this  arrangement  is  preferable  to  a  plan,  such  as  that  of 
the  French  Constitution  of  1791  ^  (under  which  the  king's  veto 
could  be  overridden  by  passing  a  bill  in  three  successive 
years),  for  enabling  the  executive  simply  to  delay  the  passing 
of  a  measure  wliich  may  be  urgent,  or  which  a  vast  majority 
of  the  legislature  may  desire.  In  its  practical  working  the 
presidential  veto  power  furnishes  an  interesting  illustration  of 
the  tendency  of  unwritten  or  flexible  constitutions  to  depart 
from,  of  written  or  rigid  constitutions  to  cleave  to,  the  letter 
of  the  law.  The  strict  legal  theory  of  the  rights  of  the  head 
of  the  state  is  in  this  point  exactly  the  same  in  England  and 
in  America.  But  whereas  it  is  now  the  undoubted  duty  of  an 
English  king  to  assent  to  every  bill  passed  by  both  Houses  of 
Parliament,  hoAvever  strongly  he  may  personally  disapprove 
its  provisions,-  it  is  the  no  less  undoubted  duty  of  an  American 

1  As  the  majority  in  France  was  nnable  to  attain  its  will  by  constitutional 
means  \\ithont  waiting  three  years,  it  was  the  more  disposed  to  overthrow  the 
Constitution. 

■■^  Queen  Elizabeth,  in  a.d.  1597,  assented  to  forty-three  bills  passed  in  that 
session,  and  "advised  herself"  upon  forty-eight.  William  III.  refused  his 
assent  to  tivcs  bills.  The  last  instance  of  the  use  of  the  "  veto  power  "  in  Eng- 
land was  l)y  Queen  Anne  in  1707  on  a  Scotch  militia  bill.  Mr.  Todd  {Parlia- 
meritnrii  Government  in  the  Enrjliah  Colonies,  ii.  p.  319)  mentions  that  in 
1858  changes  in  a  private  railway  bill  were  compelled  by  an  intimation  to  its 
promoters  that,  if  they  were  not  made,  the  royal  power  of  rejection  would  be 
exercised. 


CHAP.  VI         PKESIDENTIAL   POWERS   AND   DUTIES  61 

President  to  exercise  his  independent  judgment  on  every  bill, 
not  sheltering  himself  nnder  the  representatives  of  the  people, 
or  foregoing  his  own  opinion  at  their  bidding.' 

As  the  President  is  charged  with  the  whole  Federal  adminis- 
tration, and  responsible  for  its  due  conduct,  he  must  of  course 
be  allowed  to  choose  his  executive  subordinates.  But  as  he 
may  abuse  this  tremendous  power  the  Constitution  associates 
the  Senate  with  him,  requiring  the  "  advice  and  consent "  of 
that  body  to  the  appointments  he  makes.-  This  confirming 
power  has  become  a  political  factor  of  the  highest  moment. 
The  framers  of  the  Constitution  probably  meant  nothing  more 
than  that  the  Senate  should  check  the  President  by  rejecting 
nominees  who  were  personally  unfit  for  the  post  to  which  he 
proposed  to  appoint  them.  The  Senate  has  always,  except  in 
its  struggle  with  President  Johnson,  left  the  President  free  to 
choose  his  cabinet  ministers.  But  it  early  assumed  the  right 
of  rejecting  a  nominee  to  any  other  office  on  any  ground  which 
it  pleased,  as  for  instance,  if  it  disapproved  his  political  affilia- 
tions, or  wished  to  spite  the  President.  Presently  the  senators 
from  the  State  wherein  a  Federal  office  to  which  the  President 
had  made  a  nomination  lay,  being  the  persons  chiefly  interested 
in  the  appointment,  and  most  entitled  to  be  listened  to  by  the 
rest  of  the  Senate  when  considering  it,  claimed  to  have  a  para- 

1  The  practical  disuse  of  the  "  veto  power  "  in  England  is  due  not  merely  to 
the  decline  in  the  authority  of  the  Crown,  hut  to  the  fact  that,  since  the  Revo- 
lution, the  Crown  acts  only  on  the  advice  of  responsible  ministers,  who  neces- 
sarily command  a  majority  in  the  House  of  Commons.  A  bill  therefore  cannot 
be  passed  against  the  wishes  of  the  ministry  unless  in  the  rare  case  of  their 
being  ministers  on  sufferance,  and  even  in  tliat  event  they  would  be  able  to 
prevent  its  passing  by  ad\nsing  the  Crown  to  prorogue  or  dissolve  Parliament 
before  it  had  gone  through  all  its  stages.  In  18G8  a  bill  (the  Irish  Church  Sus- 
pension Bill)  was  carried  through  the  House  of  Commons  by  Mr.  Gladstone 
against  the  opposition  of  the  then  Tory  ministry  which  was  holding  office  on 
sufferance ;  but  it  was  rejected  on  second  reading  by  a  large  majority  in  the 
House  of  Lords.  Had  that  House  seemed  likely  to  accept  it  the  case  would 
have  arisen  which  I  have  referred  to,  and  the  only  course  for  the  ministry 
would  have  been  to  dissolve  Parliament. 

It  was  urged  against  the  provision  in  the  Constitution  of  1789  for  the  Presi- 
dent's veto  that  the  power  would  be  useless,  because  in  England  the  Crown 
did  not  venture  to  use  it.  Wilson  replied  by  observing  that  the  English  Crown 
had  not  only  practically  an  antecedent  negative,  but  also  a  means  of  defeating 
a  bill  in  the  House  of  Lords  by  creating  new  peers.  — Elliot's  Debutes,  ii. 
p.  472. 

"  Congress  is  however  permitted  to  vest  in  the  President  alone  the  appoint- 
ment to  such  "  inferior  offices  "  as  it  thinhs  tit. 


62 


THE   NATIONAL   GOVERNMENT 


mount  voice  in  deciding  whether  the  nomination  shoukl  be  con- 
fii-med.     Their  colleagues  approving,  they  then  proceeded  to 
put  pressure  on  the  President.     They  insisted  that  before  mak- 
ing a  nomination  to  an  office  in  any  State  he  should  consult  the 
senators  from  that  State  who  belonged  to  his  own  party,  and 
be  guided  by  their  wishes.     Such  an  arrangement  benefited  all 
senators  alike,  because  each  obtained  the  right  of  practically 
dictating  the  appointments  to  those  Federal  offices  which  he 
most  cared  for,  viz.  those  within  his  own  State ;  and  each  was 
therefore  willing  to  support  his  colleagues  in  securing  the  same 
right  for  themselves  as  regarded  their  States  respectively.     Of 
course  when  a  senator  belonged  to  the  party  opposed  to  the 
President,  he  had  no  claim  to  interfere,  because  places  are  as  a 
matter  of  course  given  to  party  adherents  only.     When  both 
senators  belonged  to  the  President's  party  they  agreed  among 
themselves  as  to  the  person  whom  they  should   require  the 
President  to  nominate.     By  this  system,  which  obtained  the 
name  of  the  Courtesy  of  the  Senate,  the  President  was  practi- 
cally enslaved  as  regards  appointments,  because  his  refusal  to 
be  guided  by  the  senator  or  senators  within  whose  State  the 
office  lay  exposed  him  to  have  his  nomination  rejected.     The 
senators,  on  the  other  hand,  obtained  a  mass  of  patronage  by 
means  of  which  they  could  reward  their  partisans,  control  the 
Federal  civil  servants  of  their  State,  and  build  up  a  faction 
devoted  to  their  interests.^     Successive  Presidents  chafed  under 
the  yoke,  and  sometimes  carried  their  nominees  either  by  mak- 
ing a  bargain  or  by  fighting  hard  with  the  senators  who  sought 
to  dictate  to  them.     But  it  Avas    generally  more   prudent   to 
yield,  for  an  offended  senator  could  avenge  a  defeat  by  playing 
the  President  a  shrewd  trick  in  some  other  matter ;  and  as  the 
business  of  confirmation  is  transacted  in  secret  session,  in- 
triguers have  little  fear  of  the  public  before  their  eyes.     The 
senators  might,  moreover,  argiie   that   they  knew  best  what 
would  strengthen  the  party  in  their  State,  and  that  the  men  of 
their  choice  were  just  as  likely  to  be  good  as  those  whom  some 
private  friend  suggested  to  the  President.     Thus  the  system 

1  As  the  House  of  Representatives  could  not  allow  the  Senate  to  engross  all 
the  Federal  patronage,  there  has  heen  a  tendency  towards  a  sort  of  arrange- 
ment, according  to  which  the  greater  State  offices  belong  to  the  senators,  while 
as  regards  the  lesser  ones,  lying  within  their  respective  Congressional  districts, 
members  of  the  House  are  recognized  as  entitled  to  recommend  candidates. 


PEESIDENTIAL   POWERS   AND   DUTIES  63 


throve  and  still  thrives,  though  it  received  a  blow  from  the 
conflict  in  1881  between  President  Garfield  and  one  of  the  New 
York  senators,  Mr.  Koscoe  Conkling.  This  gentleman,  finding 
that  Mr.  Garfield  would  not  nominate  to  a  Federal  office  in  that 
State  the  person  he  proposed,  resigned  his  seat  in  the  Senate, 
inducing  his  co-senator  Mr.  Piatt  to  do  the  same.  Both  then 
offered  themselves  for  re-election  by  the  State  legislature  of 
New  York,  expecting  to  obtain  from  it  an  approA^al  of  their 
action,  and  thereby  to  cow  the  President.  The  State  legisla- 
ture, however,  in  which  a  faction  hostile  to  the  two  senators 
had  become  powerful,  rejected  Mr.  Conkling  and  Mr.  Piatt  in 
favour  of  other  candidates.  So  the  victory  remained  with  Mr. 
Garfield,  while  the  nation,  which  had  watched  the  contest 
eagerly,  rubbed  its  hands  in  glee  at  the  unexpected  denouement. 

It  need  hardly  be  added  that  the  "  Courtesy  of  the  Senate  " 
would  never  have  attained  its  present  strength  but  for  the 
growth  in  and  since  the  time  of  President  Jackson,  of  the  so- 
called  Spoils  System,  whereby  holders  of  Federal  offices  have 
been  turned  out  at  the  accession  of  a  new  President  to  make 
way  for  the  aspirants  whose  services,  past  or  future,  he  is 
expected  to  requite  or  secure  by  the  gift  of  places.^ 

The  right  of  the  President  to  remove  from  office  has  given 
rise  to  long  controversies  on  which  I  can  only  touch.  In  the 
Constitution  there  is  not  a  word  about  removals;  and  very 
soon  after  it  had  come  into  force  the  question  arose  whether, 
as  regards  those  offices  for  which  the  confirmation  of  the 
Senate  is  required,  the  President  could  remove  without  its 
consent.  Hamilton  had  argued  in  the  Federalist  (though  there 
is  reason  to  believe  that  he  afterwards  changed  his  opinion) 
that  the  President  could  not  so  remove,  because  it  was  not 
to  be  supposed  that  the  Constitution  meant  to  give  him  so 
immense  and  dangerous  a  reach  of  power.  Madison  argued 
soon  after  the  adoption  of  the  Constitution  that  it  did  permit 
him  so  to  remove,  because  the  head  of  the  executive  must  have 
subordinates  whom  he  can  trust,  and  may  discover  in  those 
whom  he  has  appointed  defects  fatal  to  their  usefulness.  This 
was  also  the  view  of  Chief-Justice  Marshall.  When  the 
question  came  to  be  settled  in  the  Senate  during  the  presi- 
dency of  Washington,  Congress,  influenced  perhaps  by  respect 
1  See  Chapter  LXV.  on  the  Spoils  System  in  Vol.  II. 


64  THE   NATIONAL   GOVERNMENT 


for  liis  perfect  uprightness,  took  the  Madisonian  view  and 
recognized  the  power  of  removal  as  vested  in  the  President 
alone.  So  matters  stood  till  a  conflict  arose  in  1866  between 
President  Johnson  and  the  Republican  majority  in  both  Houses 
of  Congress.  In  1867,  Congress  fearing  that  the  President 
would  dismiss  a  great  number  of  officials  who  sided  with  it 
against  him,  passed  an  Act,  known  as  the  Tenure  of  Office 
Act,  which  made  the  consent  of  the  Senate  necessary  to  the 
removal  of  office-holders,  even  of  the  President's  (so-called) 
cabinet  ministers,  permitting  him  only  to  suspend  them  from 
office  during  the  time  when  Congress  was  not  sitting.  The 
constitutionality  of  this  Act  has  been  much  doubted,  and  its 
policy  is  now  generally  condemned.  It  was  a  blow  struck  in 
the  heat  of  passion.  When  President  Grant  succeeded  in 
1869,  the  Act  was  greatly  modified,  and  in  1887  it  was  repealed. 

How  dangerous  it  is  to  leave  all  offices  tenable  at  the  mere 
pleasure  of  a  partisan  Executive  using  them  for  party  pur- 
poses, has  been  shown  by  the  fruits  of  the  Spoils  system.  Ou 
the  other  hand  a  President  ought  to  be  free  to  choose  his  chief 
advisers  and  ministers,  and  even  in  the  lower  ranks  of  the  civil 
service  it  is  hard  to  secure  efficiency  if  a  specific  cause,  such 
as  could  be  proved  to  a  jury,  must  be  assigned  for  dismissal. 

The  Constitution  permits  Congress  to  vest  in  the  Courts  of 
Law  or  in  "  the  heads  of  departments  "  the  right  of  appointing 
to  "inferior  offices."  This  provision  has  been  used  to  remove 
many  posts  from  the  nomination  of  the  President,  and  by  the 
Civil  Service  Reform  Act  of  1883  competitive  examinations 
have  been  instituted  for  about  34,000.  A  great  number  how- 
ever, roughly  estimated  at  3500,  and  including  more  than  2000 
post-masterships  and  some  600  places  under  the  Treasury, 
remain  in  the  free  gift  of  the  President ;  while  even  as  regards 
those  which  lie  with  his  ministers,  he  may  be  invoked  if  dis- 
putes arise  between  the  minister  and  politicians  pressing  the 
claims  of  their  respective  friends.  The  business  of  nominating 
is  in  ordinary  times  so  engrossing  as  to  leave  the  chief  mag- 
istrate of  the  nation  little  time  for  his  other  functions. 

Artemus  Ward's  description  of  Abraham  Lincoln  swept 
along  from  room  to  room  in  the  White  House  by  a  rising  tide 
of  office  seekers  is  hardly  an  exaggeration.  From  the  4th  of 
March,  when  Mr.  Garfield  came  into  power,  till  he  was  shot 


CHAi'.  VI  PRESIDENTIAL   POWERS   AND   DUTIES  65 

in  the  July  following,  he  was  engaged,  almost  incessantly  iu 
questions  of  patronage.^  Yet  the  President's  individual  judg- 
ment has  little  scope.  He  must  reckon  with  the  Senate;  he 
must  requite  the  supporters  of  the  men  to  whom  he  owes  his 
election :  he  must  so  distribute  places  all  over  the  country  as 
to  keep  the  local  wire-pullers  in  good  humour,  and  generally 
strengthen  the  party  by  "  doing  something  "  for  those  who  have 
worked  or  will  work  for  it.  Although  the  minor  posts  are 
practically  left  to  the  nomination  of  the  senators  or  congress- 
men from  the  State  or  district,  conflicting  claims  give  infinite 
trouble,  and  the  more  lucrative  offices  are  numerous  enough  to 
make  the  task  of  selection  laborious  as  well  as  thankless  and 
disagreeable.  In  every  country  statesmen  find  the  dispensing  of 
patronage  the  most  disagreeable  part  of  their  work;  and  the  more 
conscientious  they  are,  the  more  does  it  worry  them.  No  one  has 
more  to  gain  from  a  thorough  scheme  of  civil  service  reform  than 
the  President.  The  present  system  makes  a  wire-puller  of  him.  It 
throws  work  on  him  unworthy  of  a  fine  intellect,  and  for  w^hich  a 
man  of  fijie  intellect  may  be  ill  qualified.  On  the  other  hand  the 
President's  patronage  is,  in  the  hands  of  a  skilful  intriguer,  an 
engine  of  far-spreading  potency.  By  it  he  can  oblige  a  vast  num- 
ber of  persons,  can  bind  their  interests  to  his  own,  can  fill  impor- 
tant places  with  the  men  of  his  choice.  Such  authority  as  he  has 
over  the  party  in  Congress,  and  therefore  over  the  course  of  leg- 
islation, such  influence  as  he  exerts  on  his  party  in  the  several 
States,  and  therefore  over  the  selection  of  candidates  for  Con- 
gress, is  due  to  his  patronage.  Unhappily,  the  more  his  patron- 
age is  used  for  these  purposes,  the  more  it  is  apt  to  be  diverted 
from  the  aim  of  providing  the  country  with  the  best  officials. 

In  quiet  times  the  power  of  the  President  is  not  great.  He 
is  hampered  at  every  turn  by  the  necessity  of  humouring  his 
party.  He  is  so  much  engrossed  by  the  trivial  and  mechanical 
parts  of  his  work  as  to  have  little  leisure  for  framing  large 
schemes  of  policy,  while  in  carrying  them  out  he  needs  the  co- 
operation of  Congress,  which  may  be  jealous,  or  indifferent,  or 
hostile.  He  has  less  influence  on  legislation, — that  is  to  say, 
his  individual  volition  makes  less  difference  to  the  course  legis- 
lation takes,  than  the  Speaker  of  the  House  of  Representatives. 

1  It  is  related  that  a  friend,  meeting  Mr.  Lincoln  one  day  during  the  war, 
observed,  "  You  look  anxious,  Mr.  President ;  is  there  had  news  from  the 
front?"  "No,"  answered  the  President,  "it  isn't  the  war:  it's  that  post- 
mastership  at  Brownsville,  Ohio." 

VOL.  I  F 


6G 


THE   NATIONAL   GOVERNMENT 


In  troublous  times  it  is  otherwise,  for  immense  responsibility  is 
then  thrown  on  one  who  is  both  the  commander-in-chief  and 
the  head  of  the  civil  executive.  Abraham  Lincoln  wielded 
more  authority  than  any  single  Englishman  has  done  since 
Oliver  Cromwell.  It  is  true  that  the  ordinary  law  was  for 
some  particular  purposes  practically  suspended  during  the 
War  of  Secession.  But  it  will  always  have  to  be  similarly 
suspended  in  similar  crises,  and  the  suspension  makes  the 
President  a  sort  of  dictator. 

Setting  aside  these  exceptional  moments,  the  dignity  and 
power  of  the  President  have,  except  as  respects  the  increase 
in  the  quantity  of  his  patronage,  grown  but  little  during  the 
last  fifty  years,  that  is,  since  the  time  of  Andrew  Jackson,  the 
last  President  who,  not  so  much  through  his  office  as  by  his  per- 
sonal ascendency  and  the  vehemence  of  his  character,  led  and 
guided  his  party  from  the  chair.  Here,  too,  one  sees  how  a 
rigid  or  supreme  Constitution  serves  to  keep  things  as  they 
were.  But  for  its  iron  hand,  the  office  would  surely,  in  a  coun- 
try where  great  events  have  been  crowded  on  one  another  and 
opinion  changes  rapidly  under  the  teaching  of  events,  have 
either  risen  or  fallen,  have  gained  strength  or  lost  it. 

In  no  European  country  is  there  any  personage  to  whom  the 
President  can  be  said  to  correspond.  If  we  look  at  parlia- 
mentary countries  like  England,  Italy,  Belgium,  he  resembles 
neither  the  sovereign  nor  the  prime  minister,  for  the  former  is 
not  a  party  chief  at  all,  and  the  latter  is  palpably  nothing  else. 
The  President  enjoys  more  authority,  if  less  dignity,  than  a 
European  king.  He  has  powers  for  the  moment  narrower  than 
a  European  prime  minister,  but  these  powers  are  more  secure, 
for  they  do  not  depend  on  the  pleasure  of  a  parliamentary 
majority,  but  run  on  to  the  end  of  his  term.  One  naturally 
compares  him  with  the  French  president,  but  the  latter  has  a 
prime  minister  and  cabinet,  dependent  on  the  Chamber,  at  once 
to  relieve  and  to  eclipse  him :  in  America  the  President's  cabi- 
net is  a  part  of  himself  and  has  nothing  to  do  with  Congress. 
The  president  of  the  Swiss  Confederation  is  merely  the  chair- 
man for  a  year  of  the  Administrative  Federal  Council  (Bundes- 
rath),  and  can  hardl}''  be  called  the  executive  chief  of  the  nation. 

The  difficulty  in  forming  a  just  estimate  of  the  President's 
power  arises  from  the  fact  that  it  differs  so  much  under  ordi- 


CHAP.  VI         PRESIDENTIAL   POWERS   AND   DUTIES  67 

nary  and  under  extraordinary  circumstances.  This  is  a  result 
which  republics  might  seem  specially  concerned  to  prevent,  and 
yet  it  is  specially  frequent  under  republics,  as  witness  the 
cases  of  ancient  Home  and  of  the  Italian  cities  in  the  Middle 
Ages.  In  ordinary  times  the  President  may  be  compared  to 
the  senior  or  managing  clerk  in  a  large  business  establishment, 
whose  chief  function  is  to  select  his  subordinates,  the  policy  of 
the  concern  being  in  the  hands  of  the  board  of  directors.  But 
when  foreign  affairs  become  critical,  or  when  disorders  within 
the  Union  require  his  intervention,  —  when,  for  instance,  it 
rests  with  him  to  put  down  an  insurrection  or  to  decide  which 
of  two  rival  State  governments  he  will  recognize  and  support 
by  arms,  everything  may  depend  on  his  judgment,  his  courage, 
and  his  hearty  loyalty  to  the  principles  of  the  Constitution. 

It  used  to  be  thought  that  hereditary  monarchs  were  strong 
because  they  reigned  by  a  right  of  their  own,  not  derived  from 
the  people.  A  President  is  strong  for  the  exactly  opposite 
reason,  because  his  rights  come  straight  from  the  people.  We 
shall  have  frequent  occasion  to  observe  that  nowhere  is  the 
rule  of  public  opinion  so  complete  as  in  America,  or  so  direct, 
that  is  to  say,  so  independent  of  the  ordinary  machinery  of 
government.  Now  the  President  is  deemed  to  represent  the 
people  no  less  than  do  the  members  of  the  legislature.  Public 
opinion  governs  by  and  through  him  no  less  than  them,  and 
makes  him  powerful  even  against  a  popularly  elected  Congress. 
This  is  a  fact  to  be  remembered  by  those  Europeans  who  seek 
in  the  strengthening  of  the  hereditary  principle  a  cure  for  the 
faults  of  government  by  assemblies.  And  it  also  suggests  the 
risk  that  attaches  to  power  vested  in  the  hands  of  a  leader 
directly  chosen  by  the  people.     A  high  authority  observes  ^ :  — 

"  Our  holiday  orators  delight  with  patriotic  fervour  to  draw  distinctions 
between  our  own  and  other  countries,  and  to  declare  that  here  the  law  is 

1  Judge  T.  M.  Cooley,  in  the  International  Review  for  Jan.  1875.  He  quotes 
the  words  of  Edward  Livingston:  "The  gloss  of  zeal  for  the  public  service  is 
always  spread  over  acts  of  oppression,  and  the  peoi^le  are  sometimes  made  to 
consider  that  as  a  brilliant  exertion  of  energy  in  their  favour  which,  when 
viewed  in  its  true  light,  would  be  found  a  fatal  blow  to  their  rights.  In  no 
government  is  this  effect  so  easily  produced  as  in  a  free  republic ;  party  spirit, 
inseparable  from  its  existence,  aids  the  illusion,  and  a  popular  leader  is  allowed 
in  many  instances  impunity,  and  sometimes  rewarded  with  applause,  for  acts 
which  would  make  a  tyrant  tremble  ou  his  throne." 


68  TIIK   NATIONAL   GOVERNMENT  part  i 

master  and  the  highest  officer  but  the  servant  of  the  law,  while  even  in  free 
England  the  monarch  is  irresponsible  and  enjoys  the  most  complete  per- 
sonal immunity.  But  such  comparisons  are  misleading,  and  may  prove 
mischievous.  In  how  many  directions  is  not  the  executive  authority  in 
America  practically  superior  to  what  it  is  in  England  !  And  can  we  say 
that  the  President  is  really  in  any  substantial  sense  any  more  the  servant 
of  the  law  than  is  the  Queen  ?  Perhaps  if  we  were  candid  we  should  con- 
fess that  the  danger  that  the  executive  may  be  tempted  to  a  disregard  of  the 
law  may  justly  be  believed  greater  in  America  than  in  countries  where  the 
chief  magistrate  comes  to  his  office  without  the  selection  of  the  people  ; 
and  where  consequently  their  vigilance  is  quickened  by  a  natural  dis- 
trust." 

Although  recent  Presidents  have  shown  no  disposition  to 
strain  their  authority,  it  is  still  the  fashion  in  America  to  be 
jealous  of  the  President's  action,  and  to  warn  citizens  against 
what  is  called  "  the  one  man  power."  General  Ulysses  S.  Grant 
was  hardly  the  man  to  make  himself  a  tyrant,  yet  the  hostility 
to  a  third  term  of  office  which  moved  many  people  who  had  not 
been  alienated  by  the  faults  of  his  administration,  rested  not 
merely  on  reverence  for  the  example  set  by  Washington,  but 
also  on  the  fear  that  a  President  repeatedly  chosen  would  be- 
come dangerous  to  republican  institutions.  This  particular 
alarm  seems  to  a  European  groundless.  I  do  not  deny  that  a 
really  great  man  might  exert  ampler  authority  from  the  presi- 
dential chair  than  its  recent  occupants  have  done.  The  same 
observation  applies  to  the  Popedom  and  even  to  the  English 
throne.  The  President  has  a  position  of  immense  dignity,  an 
unrivalled  platform  from  which  to  impress  his  ideas  (if  he  has 
any)  upon  the  people.  But  it  is  hard  to  imagine  a  President 
overthrowing  the  existing  Constitution.  He  has  no  standing 
army,  and  he  cannot  create  one.  Congress  can  checkmate  him 
by  stopping  supplies.  There  is  no  aristocracy  to  rally  round 
him.  Every  State  furnishes  an  independent  centre  of  resist- 
ance. If  he  were  to  attempt  a  coup  cfetat,  it  could  only  be  by 
appealing  to  the  people  against  Congress,  and  Congress  could 
hardly,  considering  that  it  is  re-elected  every  two  years, 
attempt  to  oppose  the  people.  One  must  suppose  a  condition 
bordering  on  civil  war,  and  the  President  putting  the  resources 
of  the  executive  at  the  service  of  one  of  the  intending  belliger- 
ents, already  strong  and  organized,  in  order  to  conceive  a  case 
in  which  he  will  be  formidable  to  freedom.     If  there  be  any 


PRESIDENTIAL   POWERS   AND   DUTIES 


danger,  it  would  seem  to  lie  in  another  direction.  The  larger  a 
community  becomes  the  less  does  it  seem  to  respect  an  assem- 
bly, the  more  is  it  attracted  by  an  individual  man.  A  bold 
President  who  knew  himself  to  be  supported  by  a  majority  in 
the  country,  might  be  tempted  to  override  the  law,  and  deprive 
the  minority  of  the  protection  which  the  law  affords  it.  He 
might  be  a  tyrant,  not  against  the  masses,  but  with  the  masses. 
But  nothing  in  the  present  state  of  American  politics  gives 
weight  to  such  apprehensions. 


CHAPTER  VII 

OBSERVATIONS    ON    THE    PBESIDENCT 

Although  the  President  has  been,  not  that  independent  good 
citizen  whom  the  framers  of  the  Constitution  contemplated,  but, 
at  least  during  the  last  sixty  years,  a  party  man,  seldom  much 
above  the  average  in  character  or  abilities,  the  oflace  has  attained 
the  main  objects  for  which  it  was  created.  Such  mistakes  as 
have  been  made  in  foreign  policy,  or  in  the  conduct  of  the 
administrative  departments,  have  been  rarely  owing  to  the 
constitution  of  the  office  or  to  the  errors  of  its  holder.  This  is 
more  than  one  who  should  review  the  history  of  Europe  during 
the  last  hundred  years  could  say  of  any  European  monarchy. 
Nevertheless,  the  faults  chargeable  on  hereditary  kingship, 
faults  more  serious  than  Englishmen,  who  have  watched  with 
admiration  the  wisdom  of  the  Crown  during  the  present  reign, 
usually  realize,  must  not  make  us  overlook  certain  defects  inci- 
dental to  the  American  presidency,  perhaps  to  any  plan  of 
vesting  the  headship  of  the  State  in  a  person  elected  for  a 
limited  period. 

In  a  country  where  there  is  no  hereditary  throne  nor  heredi- 
tary aristocracy,  an  office  raised  far  above  all  other  offices 
offers  too  great  a  stimulus  to  ambition.  This  glittering  prize, 
always  dangling  before  the  eyes  of  prominent  statesmen,  has  a 
power  stronger  than  any  dignity  under  a  European  crown  to 
lure  them  (as  it  lured  Clay  and  Webster)  from  the  path  of 
straightforward  consistency.     One  who  aims  at  the  presidency 

—  and  all  prominent  politicians  do  aim  at  it  —  has  the  strongest 
possible  motives  to  avoid  making  enemies.  Now  a  great  states- 
man ought  to  be  prepared  to  make  enemies.  It  is  one  thing 
to  try  to  be  popular  —  an  unpopular  man  will  be  uninfluential 

—  it  is  another  to  seek  popularity  by  courting  every  section  of 
your  party.     This  is  the  temptation  of  presidential  aspirants. 


CHAP.  VII        OBSERVATIONS   ON   THE   PRESIDENCY  71 


A  second  defect  is  tliat  the  presidential  election,  occurring 
once  in  four  years,  throws  the  country  for  several  months  into 
a  state  of  turmoil,  for  which  there  may  be  no  occasion.  Per- 
haps there  are  no  serious  party  issues  to  be  decided,  perhaps 
the  best  thing  would  be  that  the  existing  Administration  should 
pursue  the  even  tenor  of  its  way.  The  Constitution,  however, 
requires  an  election  to  be  held,  so  the  whole  costly  and  compli- 
cated machinery  of  agitation  is  put  in  motion ;  and  if  issues  do 
not  exist,  they  have  to  be  created.^  Professional  politicians 
who  have  a  personal  interest  in  the  result,  because  it  involves 
the  gain  or  loss  of  oflSce  to  themselves,  conduct  w^hat  is  called 
a  "  campaign,"  and  the  country  is  forced  into  a  (possibly  facti- 
tious) excitement  from  midsummer,  when  each  party  selects 
the  candidate  whom  it  will  nominate,  to  the  first  week  of 
November,  when  the  contest  is  decided.  There  is  some  politi- 
cal education  in  the  process,  but  it  is  bought  dearly,  not  to  add 
that  business,  and  especially  finance,  is  disturbed,  and  much 
money  spent  unproductively. 

Again,  these  regularly  recurring  elections  produce  a  discon- 
tinuity of  policy.  Even  when  the  new  President  belongs  to 
the  same  party  as  his  predecessor,  he  usually  nominates  a  new 
cabinet,  having  to  reward  his  especial  supporters.  Many  of 
the  inferior  offices  are  changed ;  men  who  have  learned  their 
work  make  way  for  others  who  have  everything  to  learn.  If 
the  new  President  belongs  to  the  opposite  party,  the  change 
of  officials  is  far  more  sweeping,  and  involves  larger  changes  of 
policy.  The  evil  would  be  more  serious  were  it  not  that  in 
foreign  policy,  where  the  need  for  continuity  is  greatest,  the 
United  States  has  little  to  do,  and  that  the  co-operation  of  the 
Senate  in  this  department  qualifies  the  divergence  of  the  ideas 
of  one  President  from  those  of  another. 

Fourthly.  The  fact  that  he  is  re-eligible  once,  but  (practi- 
cally) only  once,  operates  unfavourably  ou  the  President.  He 
is  tempted  to  play  for  a  re-nomination  by  so  pandering  to  active 

1  In  England,  also,  there  is  necessarily  a  campaign  once  at  least  in  every 
six  or  seven  years,  when  a  general  election  takes  place,  and  sometimes  oftener. 
But  note  that  in  England  (1)  this  is  the  only  season  of  disturbance,  whereas 
in  America  the  Congressional  elections  furnish  a  second ;  (2)  the  period  is 
usually  shorter  (three  to  six  weeks,  not  four  months) ;  (3)  there  are  usually 
real  and  momentous  issues,  dividing  the  great  parties,  which  the  nation  has 
to  settle. 


■72  THE   NATIONAL   GOVERNMENT  part  i 

sections  of  his  own  party,  or  so  using  his  patronage  to  concili- 
ate influential  politicians,  as  to  make  them  put  him  forward  at 
the  next  election.  On  the  other  hand,  if  he  is  in  his  second 
term  of  office,  he  has  no  longer  much  motive  to  regard  the 
interests  of  the  nation  at  large,  because  he  sees  that  his  own 
political  death  is  near.  It  may  be  answered  that  these  two 
evils  will  correct  one  another,  that  the  President  will  in  his 
first  term  be  anxious  to  win  the  respect  of  the  nation,  in  his 
second  he  will  have  no  motive  for  yielding  to  the  unworthy 
pressure  of  party  wire-pullers ;  while  in  reply  to  the  suggestion 
that  if  he  were  held  ineligible  for  the  next  term,  but  eligible 
for  any  future  term,  both  sets  of  evils  might  be  avoided,  and 
both  sets  of  benefits  secured,  it  can  be  argued  that  such  a  pro- 
vision would  make  that  breach  in  policy  which  may  now  hap- 
pen only  once  in  eight  years,  necessarily  happen  once  in  four 
years.  It  would,  for  instance,  have  prevented  the  re-election 
of  Abraham  Lincoln  in  1864. 

The  founders  of  the  Southern  Confederacy  of  1861-65  were 
so  much  impressed  by  the  objections  to  the  present  system 
that  they  provided  that  their  President  should  hold  office  for 
six  years,  but  not  be  re-eligible. 

Fifthly.  An  outgoing  President  is  a  weak  President.  Dur- 
ing the  four  months  of  his  stay  in  office  after  his  successor 
has  been  chosen,  he  declines,  except  in  cases  of  extreme  neces- 
sity, to  take  any  new  departure,  to  embark  on  any  executive 
policy  which  cannot  be  completed  before  he  quits  office.  This 
is,  of  course,  even  more  decidedly  the  case  if  his  successor 
belongs  to  the  opposite  party.^ 

Lastly.  The  result  of  an  election  may  be  doubtful,  not 
from  equality  of  votes,  for  this  is  provided  against,  but  from  a 
dispute  as  to  the  validity  of  votes  given  in  or  reported  from 

1  Mr.  E.  A.  Freeman  (History  of  Federal  Government,  i.  302)  adduces  from 
Polybins  (iv.  6,  7)  a  curious  instance  showing  tliat  the  same  mischief  arose 
m  the  Achaian  League  :  "The  ^tolians  cliose  for  an  inroad  the  time  when  the 
official  year  (of  the  Achaian  General)  was  drawing  to  its  close,  as  a  time  when 
the  Achaian  counsels  were  sure  to  be  weak.  Aratos,  the  General  elect,  was 
not  yet  in  office;  Timoxenos,  the  outgoing  General,  shrank  from  energetic 
action  so  late  in  his  year,  and  at  last  yielded  up  his  office  to  Aratos  before  the 
legal  time."  This  effort  of  Timoxenos  to  escape  from  the  consequences  of  the 
system  could  not  have  occurred  in  governments  like  those  of  Rome,  England, 
or  the  United  States,  where  "  the  reign  of  law  "  is  far  stricter  than  it  was  in 
the  Greek  republics. 


CHAP.  VII        OBSERVATIONS   ON   THE   PKESIDENCY  73 

the  States.  The  difficulty  which  arose  in  1876  will  not, 
owing  to  the  legislation  of  1887,  recur  in  quite  the  same  form. 
But  cases  may  arise  in  which  the  returns  from  a  State  of  its 
electoral  votes  will,  because  notoriously  obtained  by  fraud 
or  force,  fail  to  be  recognized  as  valid  by  the  party  whose  can- 
didate they  prejudice.  No  presidential  election  passes  without 
charges  of  this  kind,  and  these  charges  are  not  always  un- 
founded. Should  manifest  unfairness  coincide  with  popular 
excitement  over  a  really  important  issue,  the  self-control  of 
the  people,  which  in  1877,  when  no  such  issue  was  involved, 
restrained  the  party  passions  of  their  leaders,  may  prove  un- 
equal to  the  strain  of  such  a  crisis. 

Further  observations  on  the  President,  as  a  part  of  the 
machinery  of  government,  will  be  better  reserved  for  the  dis- 
cussion of  the  relations  of  the  executive  and  legislative 
departments.  I  will  therefore  only  observe  here  that,  even 
when  we  allow  for  the  defects  last  enumerated,  the  presidential 
office,  if  not  one  of  the  best  features  of  the  American  Consti- 
tution, is  nowise  to  be  deemed  a  failure.  The  problem  of  con- 
structing a  stable  executive  in  a  democratic  country  is  indeed 
so  immensely  difficult  that  anything  short  of  a  failure  deserves 
to  be  called  a  success.  Now  the  President  has,  during  ninety- 
nine  years,  carried  on  the  internal  administrative  business  of 
the  nation  with  due  efficiency.  Once  or  twice,  as  when  Jeffer- 
son purchased  Louisiana,  and  Lincoln  emancipated  the  slaves 
in  the  revolted  States,  he  has  courageously  ventured  on 
stretches  of  authority,  held  at  the  time  to  be  doubtfully  con- 
stitutional, yet  necessary,  and  approved  by  the  judgment  of 
posterity.  He  has  kept  the  machinery  working  quietly  and 
steadily  when  Congress  has  been  distracted  by  party  strife,  or 
paralyzed  by  the  dissensions  of  the  two  Houses,  or  enfeebled  by 
the  want  of  first-rate  leaders.  The  executive  has  been  able,  at 
moments  of  peril,  to  rise  almost  to  a  dictatorship,  as  during 
the  War  of  Secession,  and  when  peace  returned,  to  sink 
back  into  its  proper  constitutional  position.  It  has  shown  no 
tendency  so  to  dwarf  the  other  authorities  of  the  State  as  to 
pave  the  way  for  a  monarchy. 

Europeans  are  struck  by  the  faults  of  a  plan  which  plunges 
the  nation  into  a  whirlpool  of  excitement  once  every  four  years, 
and  commits  the  headship  of  the  State  to  a  party  leader  chosen 


74  THE   NATIONAL   GOVERNMENT 


for  a  short  period.^  But  there  is  another  aspect  in  which  the 
presidential  election  may  be  regarded,  and  one  whose  impor- 
tance is  better  appreciated  in  America  than  in  Europe.  The 
election  is  a  solemn  periodical  appeal  to  the  nation  to  review 
its  condition,  the  way  in  which  its  biisiness  has  been  carried 
on,  the  conduct  of  the  two  great  parties.  It  stirs  and  rouses 
the  nation  as  nothing  else  does,  forces  every  one  not  merely  to 
think  about  public  affairs  but  to  decide  ho^^^  he  judges  the 
parties.  It  is  a  direct  expression  of  the  will  of  twelve  mill- 
ions of  voters,  a  force  before  which  everything  must  bow.'  It 
refreshes  the  sense  of  national  duty;  and  at  great  crises  it 
intensifies  national  patriotism.  A  presidential  election  is 
sometimes,  as  in  1800,  and  as  again  most  notably  in  1860  and 
1864,  a  turning-point  in  history.  In  form  it  is  nothing  more 
than  the  choice  of  an  administrator  who  cannot  influence 
policy  otherwise  than  by  refusing  his  assent  to  bills.  In 
reality  it  is  the  deliverance  of  the  mind  of  the  people  upon  all 
such  questions  as  they  feel  able  to  decide.  A  curious  parallel 
may  in  this  respect  be  drawn  between  it  and  a  general  election 
of  the  House  of  Commons  in  England.  A  general  election  is 
in  form  a  choice  of  representatives,  with  reference  primarily 
to  their  views  upon  various  current  questions.  In  substance 
it  is  often  a  national  vote,  committing  executive  power  to  some 
one  prominent  statesman.  Thus  the  elections  of  1868,  1874, 
1880,  were  practically  votes  of  the  nation  to  place  Mr.  Glad- 
stone or  Mr.  Disraeli  at  the  head  of  the  government.  So  con- 
versely in  America,  a  presidential  election,  which  purports  to 
be  merely  the  selection  of  a  man,  is  often  in  reality  a  decision 
upon  issues  of  policy,  a  condemnation  of  the  course  taken  by 
one  party,  a  mandate  to  the  other  to  follow  some  different 
course. 

The  choice  of  party  leaders  as  Presidents  has  in  America 
caused  less  mischief  than  might  have  been  expected.  Never- 
theless, those  who  have  studied  the  scheme  of  constitutional 
monarchy  as  it  works  in  England,  or  Belgium,  or  Italy,  or  the 
reproductions  of  that  scheme  in  British  colonies,  where  the 

1  Such  faults  as  belong  to  the  plan  of  popular  election  are  not  necessarily 
incident  to  the  existence  of  a  President ;  for  in  France  the  chief  magistrate  is 
chosen  by  the  Chambers,  and  the  interposition  between  him  and  the  legislature 
of  a  responsible. ministry  serves  to  render  his  position  less  distinctly  partisan. 


CHAP.  VII        OBSERVATIONS   ON   THE   PRESEDEXCY  75 

Crown-appointed  governor  stands  outside  the  strife  of  factions 
as  a  permanent  official,  will,  when  they  compare  the  institu- 
tions of  these  countries  with  the  American  presidency,  be  im- 
pressed by  the  merits  of  a  plan  which  does  not  unite  all  the 
dignity  of  office  with  all  the  power  of  office,  and  which,  by 
placing  the  titular  chief  of  the  executive  above  and  apart  from 
party,  makes  the  civil  and  military  services  feel  themselves 
the  servants  rather  of  the  nation  than  of  any  section  of  the 
nation,  and  suggests  to  them  that  their  labours  ought  to  be 
rendered  with  equal  heartiness  to  whatever  party  may  hold  the 
reins  of  government.  Party  government  may  be  necessary. 
So  far  as  we  can  see,  it  is  necessary.  But  it  is  an  unfortunate 
necessity ;  and  whatever  tends  to  diminish  its  mischievous  in- 
fluence upon  the  machinery  of  administration,  and  to  prevent 
it  from  obtruding  itself  upon  foreign  states ;  whatever  holds 
up  a  high  ideal  of  devotion  to  the  nation  as  a  majestic  whole, 
living  on  from  century  to  century  while  parties  form  and  dis- 
solve and  form  again,  strengthens  and  ennobles  the  common- 
wealth and  all  its  citizens. 

Such  an  observation  of  course  applies  only  to  monarchy  as  a 
political  institution.  Socially  regarded,  the  American  presi- 
dency deserves  nothing  but  admiration.  The  President  is 
simply  the  first  citizen  of  a  free  nation,  depending  for  his 
dignity  on  no  title,  no  official  dress,  no  insignia  of  state.  It 
was  originally  proposed,  doubtless  in  recollection  of  the  Eng- 
lish Commonwealth  of  the  seventeenth  century,  to  give  him 
the  style  of  "  Highness,"  and  "  Protector  of  the  Liberties  of 
the  United  States."  Others  suggested  "Excellency";^  and 
Washington  is  said  to  have  had  leanings  to  the  Dutch  style  of 
"  High  Mightiness."  The  head  of  the  ruling  President  does 
not  appear  on  coins,  nor  even  on  postage  stamps.^  His  resi- 
dence at  Washington  called  officially  "the  Executive  Mansion," 
and  familiarly  "  the  White  House,"  a  building  with  a  stucco 
front  and  a  portico  supported  by  Corinthian  pillars,  said  to 

1  In  ridicule  of  this  the  more  democratic  members  of  Congress  proposed  to 
call  that  more  ornamental  than  useful  officer  the  Vice-President  "His  Super- 
fluous Excellency." 

2  The  portraits  on  American  postage  stamps  are  those  of  several  past  Presi- 
dents—Washington, Jefferson,  Jackson,  Taylor,  Lincoln,  Grant,  Garfield, 
and  of  a  few  eminent  statesmen,  such  as  Franklin,  Hamilton,  Clay,  Webster, 
Scott,  Perry,  Stanton. 


76  THE   NATIONAL   GOVEKNMENT 


have  been  modelled  upon  the  Duke  of  Leinster's  house  in  Dub- 
lin, stands  in  a  slirubbeiy,  and  has  the  air  of  a  large  suburban 
villa  rather  than  of  a  palace.  The  rooms,  though  spacious,  are 
not  spacious  enough  for  the  crowds  that  attend  the  public 
receptions.  The  President's  salary,  which  is  only  f  50,000 
(£10,000)  a  year,  does  not  permit  display,  nor  indeed  is  dis- 
play expected  from  him. 

Washington,  Avhich  even  so  lately  as  the  days  of  the  war 
was  a  wilderness  of  mud  and  negroes,  with  a  few  big  houses 
scattered  here  and  there,  has  now  become  one  of  the  hand- 
somest capitals  in  the  world,  and  cultivates  the  graces  and 
pleasures  of  life  with  eminent  success.  Besides  its  political 
society  and  its  diplomatic  society,  it  is  becoming  a  winter  resort 
for  men  of  wealth  and  leisure  from  all  over  the  continent. 
It  is  a  place  where  a  court  might  be  created,  did  any  one  wish 
to  create  it.  No  President  has  made  the  attempt ;  and  as  the 
earlier  career  of  the  chief  magistrate  and  his  wife  has  seldom 
qualified  them  to  lead  the  world  of  fashion,  none  is  likely  to 
make  it.  However,  the  action  of  the  wife  of  President  Hayes, 
an  estimable  lady,  whose  ardent  advocacy  of  temperance  caused 
the  formation  of  many  total  abstinence  societies,  called  by  her 
name,  showed  that  there  may  be  fields  in  which  a  President's 
consort  can  turn  her  exalted  position  to  good  account,  while 
of  course  such  gifts  or  charms  as  she  possesses  will  tend  to 
increase  his  popularity. 

To  a  European  observer,  weary  of  the  slavish  obsequiousness 
and  lip-deep  adulation  with  which  the  members  of  reigning 
families  are  treated  on  the  eastern  side  of  the  Atlantic,  fawned 
on  in  public  and  carped  at  in  private,  the  social  relations  of  an 
American  President  to  his  people  are  eminently  refreshing. 
There  is  a  great  respect  for  the  office,  and  a  corresponding 
respect  for  the  man  as  the  holder  of  the  office,  if  he  has  done 
nothing  to  degrade  it.  There  is  no  servility,  no  fictitious  self- 
abasement  on  the  part  of  the  citizens,  but  a  simple  and  hearty 
deference  to  one  who  represents  the  majesty  of  the  nation,  the 
sort  of  respect  which  the  proudest  Koman  paid  to  the  consul- 
ship, even  if  the  particular  consul  was,  like  Cicero,  a  '-new 
man."  The  curiosity  of  the  visitors  who  throng  the  White 
House  on  reception  days  is  sometimes  too  familiar ;  but  this 
fault  tends  to  disappear,  and  Presidents  have  now  more  reason 


CHAP.  VII        OBSERVATIONS   ON   THE    PRESIDENCY  77 

to  complain  of  the  persecutions  they  endure  from  an  incessantly 
observant  journalism.  After  oscillating  between  the  ceremo- 
nious state  of  George  Washington,  who  drove  to  open  Congress 
in  his  coach  and  six,  with  outriders  and  footmen  in  livery,  and  the 
ostentatious  plainness  of  Citizen  Jefferson,  who  would  ride  up 
alone  and  hitch  his  horse  to  the  post  at  the  gate,^  the  President 
has  settled  down  into  an  attitude  between  that  of  the  mayor  of  a 
great  English  town  on  a  public  occasion,  and  that  of  a  European 
cabinet  minister  on  a  political  tour.  He  is  followed  about  and 
feted,  and  in  every  way  treated  as  the  first  man  in  the  company  ; 
but  the  spirit  of  equality  which  rules  the  country  has  sunk  too 
deep  into  every  American  nature  for  him  to  exjiect  to  be 
addressed  with  bated  breath  and  whispering  reverence.  He 
has  no  military  guard,  no  chamberlains  or  grooms-in-waiting ; 
his  everyday  life  is  simple  ;  his  wife  enjoys  precedence  over  all 
other  ladies,  but  is  visited  and  received  just  like  other  ladies ; 
he  is  surrounded  by  no  such  pomp  and  enforces  no  such  eti- 
quette as  that  which  belongs  to  the  governors  even  of  second- 
class  English  colonies,  not  to  speak  of  the  viceroys  of  India  and 
Ireland. 

It  begins  to  be  remarked  in  Europe  that  monarchy,  which 
used  to  be  deemed  politically  dangerous  but  socially  useful,  has 
now,  since  its  claws  have  been  cut,  become  politically  valuable, 
but  of  doubtful  social  utility.  In  the  United  States  the  most 
suspicious  democrat  —  and  there  are  democrats  who  complain 
that  the  office  of  President  is  too  monarchical  —  cannot  accuse 
the  chief  magistracy  of  having  tended  tp  form  a  court,  much 
less  to  create  those  evils  which  thrive  in  the  atmosphere  of 
European  courts.  No  President  dare  violate  social  decorum  as 
European  sovereigns  have  so  often  done.  If  he  did,  he  would 
be  the  first  to  suffer. 

1  Mr.  H.  Adams  {First  Administration  of  Jefferson,  vol.  i.  p.  197)  has,  how- 
ever, shown  that  at  his  inauguration  Jefferson  walked. 


CHAPTER   VIII 

WHY    GREAT    MEN    ARE    NOT    CHOSEN    PRESIDENTS 

Europeans  often  ask,  and  Americans  do  not  always  explain, 
how  it  happens  that  this  great  of!ice,  the  greatest  in  the  world, 
unless  we  except  the  Papacy,  to  which  any  one  can  rise  by  his 
own  merits,  is  not  more  frequently  filled  by  great  and  striking 
men.  In  America,  which  is  beyond  all  other  countries  the 
country  of  a  "  career  open  to  talents,"  a  country,  moreover,  in 
which  political  life  is  unusually  keen  and  political  ambition 
Avidely  diffused,  it  might  be  expected  that  the  highest  place 
would  always  be  won  by  a  man  of  brilliant  gifts.  But  since  the 
heroes  of  the  Revolution  died  out  with  Jefferson  and  Adams  and 
Madison  some  sixty  years  ago,  no  person  except  General  Grant 
has  reached  the  chair  whose  name  would  have  been  remembered 
had  he  not  been  President,  and  no  President  except  Abraham 
Lincoln  has  displayed  rare  or  striking  qualities  in  the  chair, 
^Vho  now  knows  or  cares  to  know  anything  about  the  person- 
ality of  James  K.  Polk  or  Franklin  Pierce  ?  The  only  thing 
remarkable  about  them  is  that  being  so  commonplace  they 
should  have  climbed  so  high. 

Several  reasons  may  be  suggested  for  the  fact,  which  Ameri- 
cans are  themselves  the  first  to  admit. 

One  is  that  the  proportion  of  first-rate  ability  drawn  into 
l)olitics  is  smaller  in  America  than  in  most  European  countries. 
This  is  a  phenomenon  whose  causes  must  be  elucidated  later : 
in  the  meantime  it  is  enough  to  say  that  in  France  and  Italy, 
where  half-revolutionary  conditions  have  made  public  life  excit- 
ing and  accessible  ;  in  Germany,  where  an  admirably-organized 
civil  service  cultivates  and  develops  statecraft  with  unusual 
success  ;  in  England,  where  many  persons  of  wealth  and  leisure 
sejek  to  enter  the  political  arena,  while  burning  questions  touch 
the  interests  of  all  classes  and  make  men  eager  observers  of  the 

78 


CHAP.  VIII       WHY   GREAT   MEN   ARE   NOT   CHOSEN  79 

combatants,  the  total  quantity  of  talent  devoted  to  parliamen- 
tary or  administrative  work  is  larger,  relatively  to  the  popular 
tion,  than  in  America,  where  much  of  the  best  ability,  both  for 
thought  and  for  action,  for  planning  and  for  executing,  rushes 
into  a  field  which  is  comparatively  narrow  in  Europe,  the  busi- 
ness of  developing  the  material  resources  of  the  country. 

Another  is  that  the  methods  and  habits  of  Congress^  and 
indeed  of  political  life  generally,  give  fewer  oiDportunities  for 
personal  distinction,  fewer  modes  in  which  a  man  may  commend 
himself  to  his  countrymen  by  eminent  capacity  in  thought,  in 
speech,  or  in  administration,  than  is  the  case  in  the  free  coun- 
tries of  Europe.  This  is  a  point  to  be  explained  in  later  chap- 
ters.    I  note  here  in  passing  what  will  there  be  dwelt  on. 

A  third  reason  is  that  eminent  men  make  more  enemies,  and 
give  those  enemies  more  assailable  points,  than  obscure  men  do. 
They  are  therefore  in  so  far  less  desirable  candidates.  It  is 
true  that  the  eminent  man  has  also  made  more  friends,  that  his 
name  is  more  widely  known,  and  may  be  greeted  with  louder 
cheers.  Other  things  being  equal,  the  famous  man  is  prefer- 
able. But  other  things  never  are  equal.  The  famous  man  has 
probably  attacked  some  leaders  in  his  own  party,  has  supplanted 
others,  has  expressed  his  dislike  to  the  crotchet  of  some  active 
section,  has  perhaps  committed  errors  which  are  capable  of 
being  magnified  into  offences.  No  man  stands  long  before  the 
public  and  bears  a  part  in  great  affairs  without  giving  openings 
to  censorious  criticism.  Fiercer  far  than  the  light  which  beats 
upon  a  throne  is  the  light  which  beats  upon  a  presidential  can- 
didate, searching  out  all  the  recesses  of  his  past  life.  Hence, 
when  the  choice  lies  between  a  brilliant  man  and  a  safe  man, 
the  safe  man  is  preferred.  Party  feeling,  strong  enough  to 
carry  in  on  its  back  a  man  without  conspicuous  positive  merits, 
is  not  always  strong  enough  to  procure  forgiveness  for  a  man 
with  positive  faults. 

A  European  finds  that  this  phenomenon  needs  in  its  turn  to 
be  explained,  for  in  the  free  countries  of  EurojDC  brilliancy,  be 
it  eloquence  in  speech,  or  some  striking  achievement  in  war  or 
administration,  or  the  power  through  whatever  means  of  some- 
how impressing  the  popular  imagination,  is  what  makes  a  leader 
triumphant.  Why  should  it  be  otherwise  in  America  ?  Because 
in  America  party  loyalty  and   party  organization  have  been 


80  THE   NATIONAL   GOVERNMENT  part  i 

iiitherto  so  perfect  that  any  one  put  forward  by  the  party  will 
get  the  full  party  vote  if  his  character  is  good  and  his  "record," 
as  they  call  it,  unstained.  The  safe  candidate  may  not  draw 
in  quite  so  many  votes  from  the  moderate  men  of  the  other 
side  as  the  brilliant  one  would,  but  he  will  not  lose  nearly  so 
many  from  his  own  ranks.  Even  those  who  admit  his  medi- 
ocrity will  vote  straight  when  the  moment  for  voting  comes. 
Besides,  the  ordmary  American  voter  does  not  object  to  medi- 
ocrity. He  has  a  lower  conception  of  the  qualities  reqiiisite  to 
make  a  statesman  than  those  who  direct  public  opinion  in 
Europe  have.  He  likes  his  candidate  to  be  sensible,  vigorous, 
and,  above  all,  what  he  calls  "  magnetic,"  and  does  not  value, 
because  he  sees  no  need  for,  originality  or  profimdity,  a  fine 
culture  or  a  wide  knowledge.  Candidates  are  selected  to  be  run 
for  nomination  by  knots  of  persons  who,  however  expert  as 
party  tacticians,  are  usually  commonplace  men ;  and  the  choice 
between  those  selected  for  nomination  is  made  by  a  very 
large  body,  an  assembly  of  over  eight  hundred  delegates  from 
the  local  party  organizations  over  the  country,  who  are  cer- 
tainly no  better  than  ordinary  citizens.  How  this  process 
works  will  be  seen  more  fully  when  I  come  to  speak  of  those 
Nominating  Conventions  which  are  so  notable  a  feature  in 
American  politics. 

It  must  also  be  remembered  that  the  merits  of  a  President 
are  one  thing  and  those  of  a  candidate  another  thing.  An 
eminent  American  is  reported  to  have  said  to  friends  who 
wished  to  put  him  forward,  "  Gentlemen,  let  there  be  no  mis- 
take. I  should  make  a  good  President,  but  a  very  bad  candi- 
date." Now  to  a  party  it  is  more  important  that  its  nominee 
should  be  a  good  candidate  than  that  he  should  turn  out  a 
good  President.  A  nearer  danger  is  a  greater  danger.  As 
Saladin  says  in  The  Talisman,  "A  wild  cat  in  a  chamber  is 
more  dangerous  than  a  lion  in  a  distant  desert."  It  will  be  a 
misfortune  to  the  party,  as  well  as  to  the  country,  if  the  can- 
didate elected  should  prove  a  bad  President.  But  it  is  a 
greater  misfortune  to  the  party  that  it  should  be  beaten  in  the 
impending  election,  for  the  evil  of  losing  national  patronage 
will  have  come  four  years  sooner.  "  B  "  (so  reason  the  lead- 
ers), "who  is  one  of  our  possible  candidates,  may  be  an  abler 
man  than  A,  who  is  the  other.     But  we  have  a  better  chance 


CHAP,  viu       WHY   GKEAT   MEX  ARE   NOT   CHOSEN  81 

of  winning  with  A  than  with  B,  while  X,  the  candidate  of  our 
opponents,  is  anyhow  no  better  than  A.  We  must  therefore 
run  A."  This  reasoning  is  all  the  more  forcible  because  the 
previous  career  of  the  possible  candidates  has  generally  made 
it  easier  to  say  who  will  succeed  as  a  candidate  than  who  will 
succeed  as  a  President;  and  because  the  wire-pullers  with 
whom  the  choice  rests  are  better  judges  of  the  former  question 
than  of  the  latter. 

After  all,  too,  a  President  need  not  be  a  man  of  brilliant 
intellectual  gifts.  His  main  duties  are  to  be  prompt  and  firm 
in  securing  the  due  execution  of  the  laws  and  maintaining  the 
public  peace,  careful  and  upright  in  the  choice  of  the  executive 
officials  of  the  country.  Eloquence,  whose  value  is  apt  to  be 
overrated  in  all  free  countries,  imagination,  profundity  of 
thought  or  extent  of  knowledge,  are  all  in  so  far  a  gain  to  him 
that  they  make  him  "  a  bigger  man,"  and  help  him  to  gain 
over  the  nation  an  influence  which,  if  he  be  a  true  patriot,  he 
may  use  for  its  good.  But  they  are  not  necessary  for  the  due 
discharge  in  ordinar}^  times  of  the  duties  of  his  post.  Four- 
fifths  of  hi^s  work  is  the  same  in  kind  as  that  which  devolves 
on  the  chairman  of  a  commercial  company  or  the  manager  of 
a  railway,  the  work  of  choosing  good  subordinates,  seeing  that 
they  attend  to  their  business,  and  taking  a  sound  practical 
view  of  such  administrative  questions  as  require  his  decision. 
Pirmness,  common  sense,  and  most  of  all,  honesty,  an  honesty 
above  all  suspicion  of  personal  interest,  are  the  qualities  which 
the  country  chiefly  needs  in  its  first  magistrate. 

So  far  we  have  been  considering  personal  merits.  But  in 
the  selection  of  a  candidate  many  considerations  have  to  be 
regarded  besides  the  personal  merits,  whether  of  a  candidate, 
or  of  a  possible  President.  The  chief  of  these  considerations 
is  the  amount  of  support  which  can  be  secured  from  different 
States  or  from  different  "  sections  "  of  the  Union,  a  term  by 
which  the  Americans  denote  groups  of  States  with  a  broad 
community  of  interest.  State  feeling  and  sectional  feeling 
are  powerful  factors  in  a  presidential  election.  The  North- 
west, including  the  States  from  Ohio  to  Dakota,  is  now  the 
most  populous  section  of  the  Union,  and  therefore  counts 
for  most  in  an  election.  It  naturally  conceives  that  its 
interests   will   be   best   protected   by   one   who   knows   them 

VOL.  I  fl. 


THE   NATIONAL   GOVERNMENT 


from  Inrtli  and  residence.  Hence  prima  fade  a  North-western 
man  makes  the  best  candidate.  A  large  State  casts  a  heavier 
vote  in  the  election ;  and  every  State  is  of  course  more  likely 
to  be  carried  by  one  of  its  own  children  than  by  a  stranger, 
because  his  fellow-citizens,  while  they  feel  honoured  by  the 
choice,  gain  also  a  substantial  advantage,  having  a  better 
prospect  of  such  favours  as  the  administration  can  bestow. 
Hence,  coeteris  paribus,  a  man  from  a  large  State  is  preferable 
as  a  candidate.  The  problem  is  furtlier  complicated  by  the 
fact  that  some  States  are  already  safe  for  one  or  other  party, 
while  others  are  doubtful.  The  North-western  and  New  Eng- 
land States  are  most  of  them  likely  to  go  Republican:  the 
Southern  States  are  (at  present)  all  of  them  certain  to  go 
Democratic.  Ceteris  paribus,  a  candidate  from  a  doubtful 
State,  such  as  New  York  and  Indiana  have  usually  been,  is  to 
be  preferred. 

Other  minor  disqualifying  circumstances  require  less  ex- 
planation. A  Roman  Catholic,  or  an  avowed  disbeliever  in 
Christianity,  would  be  an  undesirable  candidate.  Since  the 
close  of  the  Civil  War,  any  one  who  fought,  especially  if  he 
fought  with  distinction,  in  the  Northern  army,  has  enjoyed 
great  advantages,  for  the  soldiers  of  that  army,  still  numerous, 
rally  to  his  name.  The  two  elections  of  General  Grant,  who 
knew  nothing  of  politics,  and  the  fact  that  his  influence  sur- 
vived the  faults  of  his  long  administration,  are  evidence  of 
the  weight  of  this  consideration. 

On  a  railway  journey  in  the  Far  West  in  1883  I  fell  in  with 
two  newspaper  men  from  the  State  of  Indiana,  who  were  tak- 
ing their  holiday.  The  conversation  turned  on  the  next  presi- 
dential election.  They  spoke  hopefully  of  the  chances  for 
nomination  by  their  party  of  an  Indiana  man,  a  comparatively 
obscure  person,  whose  name  I  had  never  heard.  I  exj^ressed 
some  surprise  that  he  should  be  thought  of.  They  observed 
that  he  had  done  well  in  State  politics,  that  there  was  nothing 
against  him,  that  Indiana  would  work  for  him.  "  But,"  I 
rejoined,  "  ought  you  not  to  have  a  man  of  more  commanding 
character  ?  There  is  Senator  A.  Everybody  tells  me  that  he 
is  the  shrewdest  and  most  experienced  man  in  your  party,  and 
that  he  has  a  perfectly  clean  record.  Wliy  not  run  him  ?  " 
"  Why,  yes,"  they  answered,  "  that  is  all  true.     Btit  you  see 


CHAP.  VIII     WHY  grp:at  men  are  not  chosen  83 

he  comes  from  a  small  State,  and  we  have  got  that  State 
already.  Besides,  he  wasn't  in  the  war.  Oiir  man  was. 
Indiana's  vote  is  worth  having,  and  if  our  man  is  run,  we  can 
carry  Indiana." 

"  Surely  the  race  is  not  to  the  swift,  nor  the  battle  to  the 
strong,  neither  yet  bread  to  the  wise,  nor  yet  riches  to  men  of 
understanding,  nor  yet  favour  to  men  of  skill,  but  time  and 
chance  happeneth  to  them  all." 

These  secondary  considerations  do  not  always  prevail.  In- 
tellectual ability  and  force  of  character  must  influence  the 
choice  of  a  candidate,  and  their  influence  is  sometimes  deci- 
sive. They  count  for  more  when  times  are  so  critical  that  the 
need  for  a  strong  man  is  felt.  Reformers  declare  that  their 
weight  will  go  on  increasing  as  the  disgust  of  good  citizens 
with  the  methods  of  professional  politicians  increases.  But 
for  many  generations  past  it  is  not  the  greatest  men  in  the 
Roman  Church  that  have  been  chosen  Popes,  nor  the  most 
brilliant  men  in  the  Anglican  Church  that  have  been  ap- 
pointed Archbishops  of  Canterbury. 

Although  several  Presidents  have  survived  their  departure 
from  office  by  many  years,  only  one,  John  Quincy  Adams, 
played  a  part  in  politics  after  quitting  the  White  House.^  It 
may  be  that  the  ex-President  has  not  been  a  great  leader  before 
his  accession  to  office ;  it  may  be  that  he  does  not  care  to  exert 
himself  after  he  has  held  and  dropped  the  great  prize,  and 
found  (one  may  safely  add)  how  little  of  a  prize  it  is.  Some- 
thing, however,  must  also  be  ascribed  to  other  features  of  the 
political  system  of  the  country.  It  is  often  hard  to  find  a 
vacancy  in  the  representation  of  a  given  State  through  which 
to  re-enter  Congress ;  it  is  disagreeable  to  recur  to  the  arts  by 
which  seats  are  secured.  Past  greatness  is  rather  an  encum- 
brance than  a  help  to  resuming  a  political  career.  Exalted 
power,  on  which  the  unsleeping  eye  of  hostile  critics  was 
fixed,  has  probably  disclosed  all  a  President's  weaknesses,  and 
has  either  forced  him  to  make  enemies  by  disobliging  adhe- 
rents, or  exposed  him  to  censure  for  subservience  to  party 

1  J.  Q.  Adams  was  elected  to  the  House  of  Representatives  within  three 
years  from  his  presidency,  and  tliere  became  for  seventeen  years  the  fearless 
and  fnrmidahle  advocate  of  what  may  be  called  the  national  theory  of  the 
Constitution  against  the  slaveholders. 


84  THE   NATIONAL   GOVERNMENT 


interests.  He  is  regarded  as  having  had  his  day ;  he  belongs 
already  to  the  past,  and  unless,  like  Grant,  he  is  endeared  to 
the  people  by  the  memory  of  some  splendid  service,  or  is 
available  to  his  party  as  a  possible  candidate  for  a  further 
term  of  office,  he  soon  sinks  into  the  crowd  or  avoids  neglect 
by  retirement.  Possibly  he  may  deserve  to  be  forgotten; 
but  more  frequently  he  is  a  man  of  sufficient  ability  and  char- 
acter to  make  the  experience  he  has  gained  valuable  to  the 
country,  could  it  be  retained  in  a  place  where  he  might  turn  it 
to  account.  They  managed  things  better  at  Kome,  gathering 
into  their  Senate  all  the  fame  and  experience,  all  the  wisdom 
and  skill,  of  those  who  had  ruled  and  fought  as  consuls  and 
praetors  at  home  and  abroad. 

We  may  now  answer  the  question  from  which  we  started. 
Great  men  are  not  chosen  Presidents,  first  because  great  men 
are  rare  in  politics ;  secondly,  because  the  method  of  choice 
does  not  bring  them  to  the  top ;  thirdly,  because  they  are  not, 
in  quiet  times,  absolutely  needed.  Let  us  close  by  observing 
that  the  Presidents,  regarded  historically,  fall  into  three  peri- 
ods, the  second  inferior  to  the  first,  the  third  rather  better  than 
the  second. 

Down  till  the  election  of  Andrew  Jackson  in  1828,  all  the 
Presidents  had  been  statesmen  in  the  European  sense  of  the 
word,  men  of  education,  of  administrative  experience,  of  a  cer- 
tain largeness  of  view  and  dignity  of  character.  All  except 
the  first  two  had  served  in  the  great  office  of  secretary  of  state ; 
all  were  well  known  to  the  nation  from  the  part  they  had 
played.  In  the  second  period,  from  Jackson  till  the  outbreak 
of  the  Civil  War  in  1861,  the  Presidents  were  either  mere  poli- 
ticians, such  as  Van  Buren,  Polk,  or  Buchanan,  or  else  success- 
ful soldiers,^  such  as  Harrison  or  Taylor,  whom  their  party 
found  useful  as  figure-heads.  They  were  intellectual  pigmies 
beside  the  real  leaders  of  that  generation  —  Clay,  Calhoun,  and 
Webster.  A  new  series  begins  with  Lincoln  in  1861.  He  and 
General  Grant  his  successor,  who  cover  sixteen  years  between 
them,  belong  to  the  history  of  the  world.  The  other  less  dis- 
tinguished Presidents  of  this  period  contrast  favourably  with 
the  Polks  and  Pierces  of  the  days  before  the  war,  but  they  are 

1  Jackson  himself  was  something  of  both  politician  and  soldier,  a  strong 
character,  but  a  narrow  and  uncultivated  intellect. 


CHAP.  VIII       WHY   GREAT   MEX   ARE   NOT   CHOSEN  85 


not,  like  the  early  Presidents,  the  first  men  of  the  country. 
If  ^ve  compare  the  nineteen  Presidents  who  have  been  elected  to 
office  since  1789  with  the  nineteen  English  prime  ministers 
of  the  same  hundred  years,  there  are  but  six  of  the  latter,  and 
at  least  eight  of  the  former  whom  history  calls  personally 
insignificant,  while  only  Washington,  Jefferson,  Lincoln,  and 
Grant  can  claim  to  belong  to  a  front  rank  represented  in  the 
English  list  by  seven  or  possibly  eight  names.^  It  would  seem 
that  the  natural  selection  of  the  English  parliamentary  sys- 
tem, even  as  modified  by  the  aristocratic  habits  of  that  coun- 
try, has  more  tendency  to  bring  the  highest  gifts  to  the  high- 
est place  than  the  more  artificial  selection  of  America. 

1  The  American  average  would  be  further  lowered  were  we  to  reckon  in  the 
four  Vice-Presidents  who  have  succeeded  on  the  death  of  the  President.  Yet 
the  English  system  does  not  always  secure  men  personally  eminent.  Adding- 
ton,  Perceval,  and  Lord  Goderich  are  no  better  than  Tyler  or  Fillmore,  which 
is  saying  little  enough. 


CHAPTER   IX 

THE    CABINET 

There  is  in  the  government  of  the  United  States  no  such 
thing  as  a  Cabinet  in  the  English  sense  of  the  term.  But  I 
use  the  term,  not  only  because  it  is  current  in  America  to  de- 
scribe the  chief  ministers  of  the  President,  but  also  because  it 
calls  attention  to  the  remarkable  difference  which  exists  be- 
tween the  great  officers  of  State  in  America  and  the  similar 
officers  in  the  free  countries  of  Europe. 

Almost  the  only  reference  in  the  Constitution  to  the  minis- 
ters of  the  President  is  that  contained  in  the  power  given  him 
to  ''  require  the  opinion  in  writing  of  the  principal  officer  in 
each  of  the  executive  departments  upon  any  subject  relating  to 
the  duties  of  their  respective  offices."  All  these  departments 
have  been  created  by  Acts  of  Congress.  Washington  began 
in  1789  with  four  only,  at  the  head  of  whom  were  the  follow- 
ing four  officials :  — 

Secretary  of  State. 
Secretary  of  the  Treasury. 
Secretary  of  War. 
Attorney-General . 

In  1798  there  was  added  a  Secretary  of  the  Navy,  in  1829  a 
Postmaster-General,^  in  1849  a  Secretary  of  the  Interior,  and  in 
1888  a  Secretary  of  Agriculture. 

These  eight  now  make  up  what  is  called  the  Cabinet.^    Each 

1  The  postmaster-general  had  been  previously  deemed  a  subordinate  in  the 
Treasury  department,  although  the  office  was  organized  by  Act  of  Congress  in 
1794 ;  he  has  been  held  to  belong  to  the  cabinet  since  Jackson  in  1829  invited 
him  to  cabinet  meetings. 

-  There  is  also  an  Inter-state  Commerce  Commission,  with  large  powers  over 
railways,  created  in  February  1887  by  Act  of  Congress;  a  Labour  Bureau 
erected  into  a  department  in  1888 ;  a  Fish  Commission  created  in  1870 ;  and  a 
Civil  Service  Commission  created  in  1883. 


CHAP.  IX  THE   CABINET  87 

receives  a  salary  of  $8000  (£1600).  All  are  appointed  by 
the  President,  subject  to  the  consent  of  the  Senate  (which  is 
practically  never  refused),  and  may  be  removed  by  the  Presi- 
dent alone.  Nothing  marks  them  off  from  any  other  officials 
who  might  be  placed  in  charge  of  a  department,  except  that 
they  are  summoned  by  'the  President  to  his  private  council. 

None  of  them  can  vote  in  Congress,  Art.  xi.  §  6  of  the  Con- 
stitution providing  that  "  no  person  holding  any  office  under 
the  United  States  shall  be  a  member  of  either  House  during 
his  continuance  in  office." 

This  restriction  was  intended  to  prevent  the  President  not 
merely  from  winning  over  individual  members  of  Congress  by 
the  allurements  of  office,  but  also  from  making  his  ministers 
agents  in  corrupting  or  unduly  influencing  the  representatives 
of  the  people,  as  George  III.  and  his  ministers  corrupted  the 
English  Parliament.  There  is  a  passage  in  the  Federalist 
(Letter  xl.)  which  speaks  of  "Great  Britain,  where  so  great  a 
proportion  of  the  members  are  elected  by  so  small  a  propor- 
tion of  the  people,  where  the  electors  are  so  corrupted  by  the 
representatives,  and  the  representatives  so  corrupted  by  the 
Crown."  The  Fathers  of  the  Constitution  were  so  resolved  to 
avert  this  latter  form  of  corruption  that  they  included  in  their 
instrument  the  provision  just  mentioned.  Its  wisdom  has 
sometimes  been  questioned.  But  it  deserves  to  be  noticed  that 
the  Constitution  contains  nothing  to  prevent  ministers  from 
being  present  in  either  House  of  Congress  and  addressing  it,^  as 
the  ministers  of  the  King  of  Italy  or  of  the  French  President 
may  do  in  either  chamber  of  Italy  or  France.^  It  is  absolutely 
silent  on  the  subject  of  communications  between  officials  (other 
than  the  President)  and  the  representatives  of  the  people. 

The  President  has  the  amplest  range  of  choice  for  his  min- 
isters. He  usually  forms  an  entirely  new  cabinet  when  he 
enters  office,  even  if  he  belongs  to  the  same  party  as  his  pred- 

1  In  February  1881  a  committee  of  eight  senators  unanimously  reported  in 
favour  of  a  plan  to  give  seats  (of  course  without  the  right  to  vote)  in  both 
Houses  of  Congress  to  cabinet  ministers,  they  to  attend  on  alternate  days  in 
the  Senate  and  in  the  House.  The  committee  recommended  that  the  necessary 
modification  in  the  rules  should  be  made,  adding  that  they  had  no  doubt  of 
the  constitutionality  of  the  proposal.  Nothing  has  so  far  been  done  to  cany 
out  this  report. 

2  The  Italian  ministers  usually  are  members  of  one  or  other  House.  Of 
course  they  cannot  vote  except  in  the  House  to  which  they  have  been  chosen. 


THE  NATIONAL  GOVERNMENT 


ecessor.  He  may  take,  lie  sometimes  does  take,  men  who  not 
only  have  never  sat  in  Congress,  but  have  not  figured  in  poli- 
tics at  all,  who  may  never  have  sat  in  a  State  legislature  nor 
held  the  humblest  office.^  Generally  of  course  the  persons 
chosen  have  already  made  for  themselves  a  position  of  at  least 
local  importance.  Often  they  are  those  to  whom  the  new 
President  owes  his  election,  or  to  whose  influence  with  the 
party  he  looks  for  support  in  his  policy.  Sometimes  they 
have  been  his  most  prominent  competitors  for  the  party  nomi- 
nations. Thus  Mr.  Lincoln  in  1860  appointed  Mr.  Seward  and 
Mr.  Chase  to  be  his  secretary  of  state  and  secretary  of  the 
treasury  respectively,  they  being  the  two  men  who  had  come 
next  after  him  in  the  selection  by  the  Republican  party  of  a 
presidential  candidate. 

The  most  dignified  place  in  the  cabinet  is  that  of  the  Secre- 
tary of  State.  It  is  the  great  prize  often  bestowed  on  the  man 
to  whom  the  President  is  chiefly  indebted  for  his  election,  or 
at  any  rate  on  one  of  the  leaders  of  the  party.  In  early  days, 
it  was  regarded  as  the  stepping-stone  to  the  presidency.  Jef- 
ferson, Madison,  Monroe,  and  J.  Q.  Adams  had  all  served  as 
secretaries  to  preceding  presidents.  The  conduct  of  foreign 
affairs  is  the  chief  duty  of  the  State  department :  its  head  has 
therefore  a  larger  stage  to  play  on  than  any  other  minister, 
and  more  chances  of  fame.  His  personal  importance  is  all  the 
greater  because  the  President  is  usually  so  much  absorbed  by 
questions  of  patronage  as  to  be  forced  to  leave  the  secretary 
to  his  own  devices.  Hence  the  foreign  policy  of  the  adminis- 
tration is  practically  that  of  the  secretary,  except  so  far  as  the 
latter  is  controlled  by  the  Senate.  The  State  department  has 
also  the  charge  of  the  great  seal  of  the  United  States,  keeps 
the  archives,  publishes  the  statutes,  and  of  course  instructs 
and  controls  the  diplomatic  and  consular  services.  It  is  often 
said  of  the  President  that  he  is  ruled,  or  as  the  Americans  ex- 
press it,  "  run,"  by  his  secretary ;  but  naturally  this  happens 
only  when  the  secretary  is  the  stronger  man,  and  in  the  same 
way  it  has  been  said  of  Presidents  before  now  that  they  were, 
like  sultans,  ruled  by  their  wives,  or  by  their  boon  companions. 

The  Secretary  of  the  Treasury  is  minister  of  finance.     His 

1  Only  two  members  of  Mr.  Harrison's  cabinet,  formed  in  1889,  had  ever  sat 
in  Congress, 


THE   CABINET  89 


function  was  of  the  utmost  importance  at  the  beginning  of  the 
government,  Avhen  a  national  system  of  finance  had  to  be  built 
up  and  the  Federal  Government  rescued  from  its  grave  embar- 
rassments. Hamilton,  who  then  held  the  office,  effected  both ; 
and  the  work  of  Gallatin,  who  served  under  Jefferson,  was 
scarcely  less  important.  During  the  War  of  Secession,  it  be- 
came again  powerful,  owing  to  the  enormous  loans  contracted 
and  the  quantities  of  paper  money  issued,  and  it  remains  so 
now,  because  it  has  the  management  (so  far  as  Congress  per- 
mits) of  the  currency  and  the  national  debt.  The  secretary 
has,  however,  by  no  means  the  same  range  of  action  as  a 
finance  minister  in  European  countries,  for  as  he  is  excluded 
from  Congress,  although  he  regularly  reports  to  it,  he  has 
nothing  directly  to  do  with  the  imposition  of  taxes,  and  very 
little  with  the  appropriation  of  revenue  to  the  various  burdens 
of  the  State. ^ 

The  Secretary  of  the  Interior  is  far  from  being  the  omni- 
present power  which  a  minister  of  the  interior  is  in  France  or 
Italy,  or  even  a  Home  Secretary  in  England,  since  nearly  all 
the  functions  which  these  officials  discharge  belong  in  Amer- 
ica to  the  State  governments  or  to  the  organs  of  local  govern- 
ment. He  is  chiefly  occupied  in  the  management  of  the  public 
lands,  still  of  immense  value,  despite  the  lavish  grants  made 
to  railway  companies,  and  with  the  conduct  of  Indian  affairs, 
a  troublesome  and  unsatisfactory  department,  which  has  al- 
ways been  a  reproach  to  the  United  States,  and  will  apparently 
continue  so  till  the  Indians  themselves  disappear  or  become 
civilized.  Patents  and  pensions,  the  latter  a  source  of  great 
expense  and  abuse,  also  belong  to  his  province,  as  do  the 
national  census  and  the  geological  siirvey. 

The  duties  of  the  Secretaries  of  War,  of  the  Navy,  of  Agri- 
culture, and  of  the  Postmaster-General  may  be  gathered  from 
their  names.  But  the  Attorney-General  is  sufficiently  differ- 
ent from  his  English  prototype  to  need  a  word  of  explanation. 
He  is  not  only  public  prosecutor  and  standing  counsel  for  the 
United  States,  but  also  to  some  extent  Avhat  is  called  on  the 
European  continent  a  minister  of  justice.     He  has  a  general 

1  See  post,  Chapter  XVII  (Congressional  Finance),  where  it  will  be  shown 
that  the  chairmen  of  the  committees  of  Ways  and  Means  and  of  Appropria- 
tions are  practically  additional  ministers  of  finance. 


00  THE   NATIONAL   GOVERNMENT 


oversight  —  it  can  hardly  be  described  as  a  control  —  of  the 
Federal  judicial  departments,  and  especially  of  the  prosecut- 
ing ofBcers  called  district  attorneys,  and  executive  court  offi- 
cers, called  United  States  marshals.  He  is  the  legal  adviser 
of  the  President  in  those  delicate  questions,  necessarily  fre- 
quent under  the  Constitution  of  the  United  States,  which 
arise  as  to  the  limits  of  the  executive  power  and  the  relations 
of  Federal  to  State  authority,  and  generally  in  all  legal  mat- 
ters. His  opinions  are  frequently  published  officially,  as  a 
justification  of  the  President's  conduct,  and  an  indication  of 
the  view  which  the  executive  takes  of  its  legal  position  and 
duties  in  a  pending  matter.^  The  attorney-general  is  always  a 
lawyer  of  eminence,  but  not  necessarily  in  the  front  rank  of 
the  profession,  for  political  considerations  have  much  to  do 
with  determining  the  President's  choice.^ 

It  will  be  observed  that  from  this  list  of  ministerial  offices 
several  are  wanting  which  exist  in  Europe.  Thus  there  is  no 
colonial  minister,  because  no  colonies ;  no  minister  of  educa- 
tion, because  that  department  of  business  belongs  to  the  sev- 
eral States  ;  ^  no  minister  of  public  worship,  because  the  United 
States  Government  has  nothing  to  do  with  any  particular  form 
of  religion ;  no  minister  of  commerce,  because  the  activity  of 
the  Federal  Government  in  that  direction,  although  increas- 
ing, is  still  limited;  no  minister  of  public  works,  because 
grants  made  for  this  purpose  come  direct  from  Congress  with- 
out the  intervention  of  the  executive,  and  are  applied  as  Con- 
gress directs.'*  Much  of  the  work  which  in  Europe  would 
devolve  on  members  of  the  administration  falls  in  America  to 

1  Another  variance  from  the  practice  of  England,  where  the  opinions  of  the 
law  olidcers  of  the  Crown  are  always  treated  as  confidential. 

2  The  Solicitor-General  is  a  sort  of  assistant  to  the  attorney,  and  not  (as  in 
England)  a  colleague. 

3  There  was  established  by  Acts  of  1867  and  1869  a  Bureau  of  Education, 
attached  to  the  department  of  the  Interior,  but  its  function  is  only  to  collect 
and  diffuse  information  on  educational  subjects.  This  it  does  with  assiduity 
and  success. 

4  Money  voted  for  river  and  harbour  improvements  is  voted  in  sums  appro- 
priated to  each  particular  piece  of  work.  The  work  is  supervised  by  officers 
of  the  Engineer  corps  of  the  United  States  army,  under  the  general  direction 
of  the  War  department.  Public  buildings  are  erected  under  the  direction  of 
an  official  called  the  supervising  architect,  who  is  attached  to  the  Treasury 
department.  The  signal  service  weather  bureau  is  a  branch  of  the  War  de- 
partment, the  coast  survey  of  the  Navy  department. 


THE   CABINET  91 


committees  of  Congress,  especially  to  committees  of  the  House 
of  Representatives.  This  happens  particularly  as  regards 
taxation,  public  works,  and  the  management  of  the  Territories, 
for  each  of  which  matters  there  exists  a  committee  in  both 
Houses.  A  cabinet  minister  formerly  took  precedence  of 
the  senators,  but  they  have  now  established  their  claim  to 
walk  before  him  on  public  occasions.  The  point  is  naturally 
of  more  importance  as  regards  the  wives  of  the  claimants  than 
as  regards  the  claimants  themselves. 

The  respective  positions  of  the  President  and  his  ministers 
are,  as  has  been  already  explained,  the  reverse  of  those  which 
exist  in  the  constitutional  monarchies  of  Europe.  There  the 
sovereign  is  irresponsible  and  the  minister  responsible  for  the 
acts  which  he  does  in  the  sovereign's  name.  In  America 
the  President  is  responsible  because  the  minister  is  nothing 
more  than  his  servant,  bound  to  obey  him,  and  independent 
of  Congress.  The  minister's  acts  are  therefore  legally  the 
acts  of  the  President.  Nevertheless  the  minister  is  also 
responsible  and  liable  to  impeachment  for  offences  committed 
in  the  discharge  of  his  duties.  The  question  whether  he  is, 
as  in  England,  impeachable  for  giving  bad  advice  to  the  head 
of  the  State  has  never  arisen,  but  upon  the  general  theory  of 
the  Constitution  it  would  rather  seem  that  he  is  not,  unless  of 
course  his  bad  counsel  should  amount  to  a  conspiracy  with  the 
President  to  commit  an  impeachable  offence.  In  France  the 
responsibility  of  the  President's  ministers  does  not  in  theory 
exclude  the  responsibility  of  the  President  himself,  although 
practically  it  makes  a  great  difference,  because  he,  like  the 
English  Crown,  acts  through  ministers  supported  by  a  ma- 
jority in  the  Chamber. 

So  much  for  the  ministers  taken  separately.  It  remains  to 
consider  how  an  American  Administration  works  as  a  whole, 
this  being  in  Europe  the  most  peculiar  and  significant  feature 
of  the  parliamentary  or  so-called  "  cabinet "  system. 

In  America  the  Administration  does  not  work  as  a  whole. 
It  is  not  a  whole.  It  is  a  group  of  persons,  each  individually 
dependent  on  and  answerable  to  the  President,  but  with  no 
joint  policy,  no  collective  responsibility.^ 

1  In  America  people  usually  speak  of  the  President  and  his  ministers  as  the 
"administration,"  not  as  the  "  government,"  apparently  because  he  and  they 


92  THE   NATIONAL   GOVERNMENT  part  i 

When  the  Constitution  was  established,  and  George  Wash- 
ington chosen  first  President  under  it,  it  was  intended  that  the 
President  should  be  outside  and  above  party,  and  the  method 
of  choosing  him  by  electors  was  contrived  with  this  very  view. 
Washington  belonged  to  no  party,  nor  indeed,  though  diverg- 
ing tendencies  were  already  manifest,  had  parties  yet  begun  to 
exist.  There  was  therefore  no  reason  Avhy  he  should  not 
select  his  ministers  from  all  sections  of  opinion.  As  he  was 
responsible  to  the  nation  and  not  to  a  majority  in  Congress,  he 
was  not  bound  to  choose  persons  who  agreed  with  the  majority 
in  Congress.  As  he,  and  not  the  ministry,  was  responsible  for 
executive  acts  done,  he  had  to  consider,  not  the  opinions  or 
affiliations  of  his  servants,  but  their  capacity  and  integrity  only. 
Washington  chose  as  secretary  of  state  Thomas  Jefferson, 
already  famous  as  the  chief  draftsman  of  the  Declaration  of 
Independence,  and  as  attorney-general  another  Virginian, 
Edmund  Eandolph,  both  men  of  extreme  democratic  leanings, 
disposed  to  restrict  the  action  of  the  Federal  Government 
within  narrow  limits.  For  secretary  of  the  treasury  he  selected 
Alexander  Hamilton  of  Kew  York,  and  for  secretary  of  war 
Henry  Knox  of  Massachusetts.  Hamilton  was  by  far  the 
ablest  man  among  those  who  soon  came  to  form  the  Federalist 
party,  the  party  which  called  for  a  strong  executive,  and  desired 
to  subordinate  the  States  to  the  central  authority.  He  soon 
became  recognized  as  its  leader.  Knox  was  of  the  same  way 
of  thinking.  Dissensions  presently  arose  between  Jefferson 
and  Hamilton,  ending  in  open  hostility,  but  Washington 
retained  them  both  as  ministers  till  Jefferson  retired  in  1794 
and  Hamilton  in  1795.  The  second  President,  John  Adams, 
kept  on  the  ministers  of  his  predecessors,  being  in  accord  with 
their  opinions,  for  they  and  he  belonged  to  the  now  full-groAvn 
Federalist  party.  But  before  he  quitted  office  he  had  quar- 
relled with  most  of  them,  having  taken  important  steps  with- 
out their  knowledge  and  against  their  wishes.  Jefferson,  the 
third  President,  was  a  thorough-going  party  leader,  who  natu- 
rally chose  his  ministers  from  his  own  political  adherents.     As 

are  uot  deemed  to  govern  in  the  European  sense.  The  latter  expression  is  not 
very  old  in  England.  Thirty  years  ago  people  usually  said  "the  Ministry" 
when  they  now  say  "  the  Government."  In  France  and  Germany  Ministry  is 
the  term  used,  while  Gouvemement  and  Regierumj  denote  the  executive  qita 
executive. 


THE   CABINET  93 


all  subsequent  Presidents  have  been  seated  by  one  or  other 
party,  all  have  felt  bound  to  appoint  a  party  cabinet.  Their 
party  expects  it ;  and  they  prefer  to  be  surrounded  and  advised 
by  their  own  friends. 

So  far,  an  American  cabinet  resembles  a  British  one.  It  is 
composed  exclusively  of  members  of  one  party.  But  now  mark 
the  differences.  The  parliamentary  system  of  England  and  of 
those  countries  which  like  Belgium,  Italy,  and  the  self-govern- 
ing British  colonies,  have  more  or  less  modelled  themselves 
upon  England,  rests  on  four  principles. 

The  head  of  the  executive  is  irresponsible.  Kesponsibility 
attaches  to  the  cabinet,  i.e.  to  the  body  of  ministers  who 
advise  him,  so  that  if  he  errs,  it  is  through  their  fault ;  they 
suffer  and  he  escapes.  The  ministers  cannot  allege,  as  a 
defence  for  any  act  of  theirs,  the  command  of  the  Crown.  If 
the  Crown  gives  them  an  order  of  which  they  disapprove,  they 
ought  to  resign. 

The  ministers  sit  in  the  legislature,  practically  forming  in 
England,  as  has  been  observed  by  the  most  acute  of  English 
constitutional  writers,  a  committee  of  the  legislature,  chosen 
by  the  majority  for  the  time  being. 

The  ministers  are  accountable  to  the  legislature,  and  must 
resign  office  ^  as  soon  as  they  lose  its  confidence. 

The  ministers  are  jointly  as  well  as  severally  liable  for  their 
acts  :  i.e.  the  blame  of  an  act  done  by  any  of  them  falls  on  the 
whole  cabinet,  unless  one  of  them  chooses  to  take  it  entirely  on 
himself  and  retire  from  office.    Their  responsibility  is  collective. 

None  of  these  principles  holds  true  in  America.  The  Presi- 
dent is  personally  responsible  for  his  acts,  not  indeed  to  Con- 
gress, but  to  the  people,  by  whom  he  is  chosen.  No  means 
exist  of  enforcing  this  responsibility,  except  by  impeachment, 
but  as  his  power  lasts  for  four  years  only,  and  is  much  re- 
stricted, this  is  no  serious  evil.  He  cannot  avoid  responsibility 
by  alleging  the  advice  of  his  ministers,  for  he  need  not  follow 
it,  and  they  are  bound  to  obey  him  or  retire.  The  ministers 
do  not  sit  in  Congress.     They  are  not  accountable  to  it,  but  to 

1  In  England  and  some  other  conntries  {e.g.  the  self-governing  British  colo- 
nies) they  have  the  alternative  of  dissolving  Parliament,  subject  to  a  somewhat 
imdefined,  but   not   wholly  extinct,  right  of  the  Crown  or  the  Governor  to 


refuse  a  dissolution  in  certain  cases. 


04  THE   NATIONAL   GOVERNMENT 


the  President,  their  master.  It  may  request  their  attendance 
before  a  committee,  as  it  may  require  the  attendance  of  any 
other  witness,  but  they  have  no  opportunity  of  expounding  and 
justifying  to  Congress  as  a  whole  their  own,  or  rather  their 
master's,  policy.  Hence  an  adverse  vote  of  Congress  does  not 
affect  their  or  his  position.  If  they  propose  to  take  a  step 
which  requires  money,  and  Congress  refuses  the  requisite  ap- 
propriation, the  step  cannot  be  taken.  But  a  dozen  votes  of 
censure  will  neither  compel  them  to  resign  nor  oblige  the 
President  to  pavise  in  any  line  of  conduct  which  is  within  his 
constitutional  rights.  This,  however  strange  it  may  seem  to  a 
European,  is  a  necessarj^  consequence  of  the  fact  that  the 
President,  and  by  consequence  his  cabinet,  do  not  derive  their 
authority  from  Congress.  Suppose  (as  befel  in  1878-9)  a 
Eepublican  President,  with  a  Democratic  majority  in  both 
Houses  of  Congress.  The  President,  unless  of  course  he  is 
convinced  that  the  nation  has  changed  its  mmd  since  it  elected 
him,  is  morally  bound  to  follow  out  the  policy  which  he  pro- 
fessed as  a  candidate,  and  which  the  majority  of  the  nation 
must  be  held  in  electing  him  to  have  aj)proved.  That  policy 
is,  however,  opposed  to  the  views  of  the  present  majority  of 
Congress.  They  are  right  to  check  him  as  far  as  they  can. 
He  is  right  to  follow  out  his  own  views  and  principles  in  spite 
of  them  so  far  as  the  Constitution  and  the  funds  at  his  disposal 
permit.  A  deadlock  may  follow.  But  deadlocks  may  happen 
under  any  system,  except  that  of  an  omnipotent  sovereign,  be 
he  a  man  or  an  assembly,  the  risk  of  deadlocks  being  indeed  the 
price  which  a  nation  pays  for  the  safeguard  of  constitutional 
checks. 

In  this  state  of  things  one  cannot  properly  talk  of  the  cab- 
inet apart  from  the  President.  An  American  administration 
resembles  not  so  much  the  cabinets  of  England  and  France  as 
the  group  of  ministers  who  surround  the  Czar  or  the  Sultan,  or 
who  executed  the  bidding  of  a  Roman  emperor  like  Constan- 
tine  or  Justinian.  Such  ministers  are  severally  responsible  to 
their  master,  and  are  severally  called  in  to  counsel  him,  but  they 
have  not  necessarily  any  relations  with  one  another,  nor  any 
duty  of  collective  action.  So  while  the  President  commits 
each  department  to  the  minister  whom  the  law  provides,  and 
may  if  he  chooses  leave  it  altogether  to  that  minister,  the  ex- 


THE   CABINET  95 


ecutive  acts  done  are  Ids  own  acts,  by  which  the  country  will 
judge  him ;  and  still  more  is  his  policy  as  a  whole  his  own 
policy,  and  not  the  policy  of  his  ministers  taken  together. 
The  ministers  meet  in  council,  but  have  comiDaratively  little  to 
settle  when  they  meet,  since  they  have  no  parliamentary  tac- 
tics to  contrive,  no  bills  to  prepare,  few  problems  of  foreign 
policy  to  discuss.  They  are  not  a  government,  as  Europeans 
understand  the  term ;  they  are  a  group  of  heads  of  depart- 
ments, whose  chief,  though  he  usually  consults  them  separately, 
often  finds  it  useful  to  bring  together  in  one  room  for  a  talk 
about  politics,  or  to  settle  some  administrative  question  which 
lies  on  the  borderland  between  the  provinces  of  two  ministers. 
A  significant  illustration  of  the  contrast  between  the  English 
and  American  systems  may  be  found  in  the  fact  that  whereas 
an  English  king  has  never  (since  Queen  Anne's  time)  sat  in 
his  own  cabinet,  because  if  he  did  he  Avould  be  deemed  account- 
able for  its  decisions,  an  American  President  always  does,  be- 
cause he  is  accountable,  and  really  needs  advice  to  help  him, 
not  to  shield  him.^ 

The  so-called  cabinet  is  unknown  to  the  statutes  as  well  as 
to  the  Constitution  of  the  United  States.  So  is  the  English 
cabinet  unknown  to  the  law  of  England.  But  then  the  Eng- 
lish cabinet  is  a  part,  is,  in  fact,  a  committee,  though  no 
doubt  an  informal  committee,  of  a  body  as  old  as  Parliament 
itself,  the  Pri^^  Council,  or  Curia  Kegis.  Of  the  ancient  in- 
stitutions of  England  which  reappear  in  the  Constitution  of  the 
United  States,  the  Privy  Council  is  not  one.^  It  may  have 
seemed  to  the  Convention  of  1787  to  be  already  obsolete.  Even 
in  England  it  was  then  already  a  belated  survival  from  an  earlier 
order  of  things,  and  now  it  lives  on  only  in  its  committees, 
three  of  which,  the  Board  of  Trade,  the  Education  department, 

1  Another  illustration  of  the  contrast  may  be  found  in  the  fact  that  when 
the  head  of  one  of  the  eight  departments  is  absent  from  "Washington  the  under 
secretary  of  the  department  is  often  asked  to  replace  him  in  the  cabinet 
council. 

2  A  privy  council  however  appears  in  the  original  Constitution  of  Delaware ; 
and  there  were  in  many  States  councils  for  advising  the  Governor.  When 
James  Wilson  was  proposing  that  the  executive  should  consist  of  a  single  person, 
he  was  asked  whether  this  person  was  to  have  a  council,  and  answered  that  he 
desired  "  to  have  no  council  which  oftener  serves  to  cover  than  to  jjrevent  mal- 
practices." Elliot's  Debates,  v.  151.  So  Randolph  argued  that  councillors 
would  impair  the  President's  responsibility.     {See  post,  Chapter  XIJ.) 


96  THE   NATIONAL   GOVERNMENT  part  i 

and  the  Agricultural  department,  serve  as  branches  of  the  ad- 
ministration, one,  the  Judicial  Committee,  is  a  law  court,  and 
one,  the  Cabinet,  is  the  virtual  executive  of  the  nation.  The 
framers  of  the  American  Constitution  saw  its  unsuitability  to 
their  conditions.  It  was  nominated,  while  with  them  a  coun- 
cil must  have  been  elective.  Its  only  effect  would  have  been 
to  control  the  President,  but  for  domestic  administration  con- 
trol is  scarcely  needed,  because  the  President  has  only  to  exe- 
cute the  laws,  while  m  foreign  affairs  and  appointments  the 
Senate  controls  him  already.  A  third  body,  over  and  above 
the  two  Houses  of  Congress,  was  in  fact  superfluous.  The 
Senate  may  appear  in  some  points  to  resemble  the  English 
Privy  Council  of  the  seventeenth  century,  because  it  advises 
the  executive ;  but  there  is  all  the  difference  in  the  world  be- 
tween being  advised  by  those  whom  you  have  yourself  chosen 
and  those  whom  election  by  others  forces  upon  you.  So  it 
happens  that  the  relations  of  the  Senate  and  the  President  are 
seldom  cordial,  much  less  confidential,  even  when  he  and  the 
majority  of  the  Senate  belong  to  the  same  party,  because  the 
Senate  and  the  President  are  rival  powers  jealous  of  one 
another. 


CHAPTER   X 

THE    SENATE 

The  National  Legislature  of  the  United  States,  called  Con- 
gress, consists  of  two  bodies,  sufficiently  dissimilar  in  compo- 
sition, powers,,  and  character  to  require  a  separate  description. 

The  Senate  consists  of  two  persons  from  each  State,  who 
must  be  inhabitants  of  that  State,  and  at  least  thirty  years  of 
age.  They  are  elected  by  the  legislature  of  their  State  for  six 
years,  and  are  re-eligible.  One-third  retire  every  two  years, 
so  that  the  whole  body  is  renewed  in  a  period  of  six  years,  the 
old  members  being  thus  at  any  given  moment  twice  as  numer- 
ous as  the  new  members  elected  within  the  last  two  years. 
As  there  are  now  forty-four  States,  the  number  of  senators, 
originally  twenty-six,  is  now  eighty-eight.  This  great  and 
unforeseen  augmentation  must  be  borne  in  mind  when  con- 
sidering the  purposes  for  which  the  Senate  was  created,  for 
some  of  which  a  small  body  is  fitter  than  a  large  one.  As 
there  remain  only  four  Territories  ^  which  can  be  formed  into 
States,  the  number  of  senators  will  not  (unless,  indeed,  existing 
States  are  divided,  or  more  than  one  State  created  out  of  some 
of  the  Territories)  rise  beyond  ninety-six.  This  is  of  course 
much  below  the  present  nominal  strength  of  the  English 
House  of  Lords  2  (about  550),  and  below  that  of  the  French 
Senate  (300),  and  the  Prussian  Herrenhaus  (432).  No  senator 
can  hold  any  office  under  the  United  States.  The  Vice-Presi- 
dent of  the  Union  is  ex  officio  president  of  the  Senate,  but  has 
no  vote,  except  a  casting  vote  when  the  numbers  are  equally 

1 1  reckon  in  neither  the  Indian  territory,  which  lies  west  of  Arkansas,  nor 
Alaska,  because  the  former  is  not  likely  within  the  near  future,  nor  the  latter 
for  a  lone;  time  to  come,  to  contain  a  civilized  i:)opnlation  such  as  would  entitle 
either  of  them  to  be  formed  into  States. 

2  At  the  accession  of  George  III.  the  House  of  Lords  numbered  only  174 
members. 

VOL.  I  H  97 


98  THE   NATIONAL   GOVERNMENT 


divided.  Failing  liim  (if,  for  instance,  he  dies,  or  falls  sick, 
or  succeeds  to  the  presidency),  the  Senate  chooses  one  of  its 
number  to  be  president  pro  tempore.  His  authority  in  ques- 
tions of  order  is  very  limited,  the  decision  of  such  questions 
being  held  to  belong  to  the  Senate  itself.^ 

The  functions  of  the  Senate  fall  into  three  classes  —  legis- 
lative, executive,  and  judicial.^  Its  legislative  function  is  to 
pass,  along  with  the  House  of  Kepresentatives,  bills  which 
become  Acts  of  Congress  on  the  assent  of  the  President,  or 
even  without  his  consent  if  passed  a  second  time  by  a  two- 
thirds  majority  of  each  House,  after  he  has  returned  them 
for  reconsideration.  Its  executive  functions  are :  —  (a)  To 
approve  or  disapprove  the  President's  nominations  of  Federal 
officers,  including  judges,  ministers  of  state,  and  ambassadors. 
(6)  To  approve,  by  a  majority  of  two-thirds  of  those  present, 
of  treaties  made  by  the  President  —  i.e.  if  less  than  two-thirds 
approve,  the  treaty  falls  to  the  ground.  Its  judicial  function 
is  to  sit  as  a  court  for  the  trial  of  impeachments  preferred  by 
the  House  of  Eepresentatives. 

The  most  conspicuous,  and  what  was  at  one  time  deemed  the 
most  important  feature  of  the  Senate,  is  that  it  represents  the 
several  States  of  the  Union  as  separate  commonwealths,  and  is 
thus  an  essential  part  of  the  Federal  scheme.  Every  State,  be 
it  as  great  as  New  York  or  as  small  as  Delaware,  sends  two 
senators,  no  more  and  no  less.'^     This  arrangement  was  long 

1  The  powers  of  the  Lord  Chancellor  as  Speaker  of  the  English  House  of 
Lords  are  much  narrower  than  those  of  the  Speaker  in  the  House  of  Commons. 
It  is  worth  notice  that  as  the  Vice-President  is  not  chosen  by  the  Senate,  but 
by  the  people,  and  is  not  strictly  speaking  a  member  of  the  Senate,  so  the  Lord 
Chancellor  is  not  chosen  to  preside  by  the  House  of  Lords,  but  by  the  sovereign, 
and  is  not  necessarily  a  peer.  This,  however,  is  merely  a  coincidence,  and  not 
the  result  of  a  wish  to  imitate  England. 

2  To  avoid  prolixity,  I  do  not  set  forth  all  the  details  of  the  constitutional 
powers  and  duties  of  the  Houses  of  Congress :  these  will  be  found  in  the  text 
of  the  Constitution  printed  in  the  Appendix. 

8  New  York  is  twice  as  large  as  Scotland,  and  more  populous  than  Scotland, 
Nortluiinberland,  and  Durham  taken  together.  Delaware  is  a  little  smaller 
than  Norfolk,  with  about  the  population  of  Bedfordshire.  It  is  therefore  as  if 
Bedfordshire  had  in  one  House  of  a  British  legislature  as  much  weight  as  all 
Scotland  together  with  Northumberland  and  Durham,  a  state  of  things  not 
very  conformable  to  democratic  theory.  Nevada  has  now  a  population  about 
equal  to  that  of  Caithness  (45,701),  but  is  as  powerful  in  the  Senate  as  New 
York.  This  State,  which  consists  of  burnt-out  mining  camps,  is  really  a  sort 
of  rotten  borough  for,  and  is  controlled  by,  the  great  "silver  men." 


THE   SENATE 


resisted  by  the  delegates  of  the  larger  States  in  the  Conven- 
tion of  1787,  and  ultimately  adopted  because  nothing  less 
would  reassure  the  smaller  States,  who  feared  to  be  overborne 
by  the  larger.  It  is  now  the  provision  of  the  Constitution 
most  difficult  to  change,  for  "  no  State  can  be  deprived  of  its 
equal  suffrage  in  the  Senate  without  its  consent,"  a  consent 
most  unlikely  to  be  given.  There  has  never,  in  point  of  fact, 
been  any  division  of  interests  or  consequent  contests  between 
the  great  States  and  the  small  ones.^  But  the  provision  for 
the  equal  representation  of  all  States  had  the  important  result 
of  making  the  slave-holding  party,  during  the  thirty  years 
which  preceded  the  Civil  War,  eager  to  extend  the  area  of 
slavery  in  order  that  by  creating  new  Slave  States  they  might 
maintain  at  least  an  equality  in  the  Senate,  and  thereby 
prevent  any  legislation  hostile  to  slavery. 

The  plan  of  giving  representatives  to  the  States  as  common- 
Avealths  has  had  several  useful  results.  It  has  provided  a 
basis  for  the  Senate  unlike  that  on  which  the  other  House  of 
Congress  is  chosen.  Every  nation  which  has  formed  a  legisla- 
ture with  two  houses  has  experienced  the  difficulty  of  devising 
methods  of  choice  sufficiently  different  to  give  a  distinct  char- 
acter to  each  house.  Italy  has  a  Senate  composed  of  persons 
nominated  by  the  Crown.  The  Prussian  House  of  Lords  is 
partly  nominated,  partly  hereditary,  partly  elective.  The 
Spanish  senators  are  partly  hereditary,  partly  official,  partly 
elective.  In  the  Germanic  Empire,  the  Federal  Council  con- 
sists of  delegates  of  the  several  kingdoms  and  principalities. 
France  appoints  her  senators  by  indirect  election.  In  England 
the  non-spiritual  members  of  the  House  of  Lords  now  sit  by 
hereditary  right ;  and  those  who  propose  to  reconstruct  that 
ancient  body  are  at  their  wits'  end  to  discover  some  plan  by 
which  it  may  be  strengthened,  and  made  practically  useful, 
without  such  a  direct  election  as  that  by  which  members  are 
chosen  to  the  House  of  Commons.^     The  American  plan,  which 

1  Hamilton  perceived  that  this  would  be  so ;  see  his  remarks  in  the  Consti- 
tutional Convention  of  New  York  in  1788.  —  Elliot's  Debates,  p.  21.3. 

2  Under  a  statute  of  1876,  two  persons  may  be  appointed  by  the  Crown  to 
sit  as  Lords  of  Appeal,  with  the  dignity  of  baron  for  life.  The  Scotch  and 
Irish  peers  enjoy  hereditary  peerages,  but  only  a  certain  number  are  elected 
by  their  fellow  peers  to  sit  in  the  House  of  Lords,  the  latter  for  life,  the  former 
for  each  parliament. 


100  THE   NATIONAL   GOVERNMENT 


is  older  tlian  any  of  those  in  use  on  the  European  continent, 
is  also  better,  because  it  is  not  only  simple,  but  natural,  i.e. 
grounded  on  and  consonant  with  the  political  conditions  of 
America.  It  produces  a  body  which  is  both  strong  in  itself  and 
different  in  its  collective  character  from  the  more  popular  House. 

It  also  constitutes,  as  Hamilton  anticipated,  a  link  between 
the  State  Governments  and  the  National  Government.  It  is  a 
part  of  the  latter,  but  its  members  derive  their  title  to  sit  in  it 
from  their  choice  by  State  legislatures.  In  one  respect  this 
connection  is  no  unmixed  benefit,  for  it  has  helped  to  make  the 
national  parties  powerful,  and  their  strife  intense,  in  these 
last-named  bodies.  Every  vote  in  the  Senate  is  so  important 
to  the  great  parties  that  they  are  forced  to  struggle  for  ascen- 
dency in  each  of  the  State  legislatures  by  whom  the  senators 
are  elected.  The  method  of  choice  in  these  bodies  was  formerly 
left  to  be  fixed  by  the  laws  of  each  State,  but  as  this  gave  rise 
to  much  uncertainty  and  intrigue,  a  Eederal  statute  was  passed 
in  1866  providing  that  each  House  of  a  State  legislature  shall 
first  vote  separately  for  the  election  of  a  Federal  senator,  and 
that  if  the  choice  of  both  Houses  shall  not  fall  on  the  same 
person,  both  Houses  in  joint  meeting  shall  proceed  to  a  joint 
vote,  a  majority  of  each  House  being  present.  Even  under 
this  arrangement,  a  senatorial  election  often  leads  to  long  and 
bitter  struggles  ;  the  minority  endeavouring  to  prevent  a  choice, 
and  so  keep  the  seat  vacant.^ 

The  method  of  choosing  the  Senate  by  indirect  election  has 
excited  the  admiration  of  foreign  critics,  who  have  found  in  it 
a  sole  and  sufficient  cause  of  the  excellence  of  the  Senate  as  a 
legislative  and  executive  authority.  I  shall  presently  inquire 
whether  the  critics  are  right.  Meantime  it  is  worth  observing 
that  the  election  of  senators  has  in  substance  almost  ceased 
to  be  indirect.  They  are  still  nominally  chosen,  as  under  the 
letter  of  the  Constitution  they  must  be  chosen,  by  the  State 
legislatures.  The  State  legislature  means,  of  course,  the  party 
for  the  time  dominant,  which  holds  a  party  meeting  (caucus) 
and  decides  on  the  candidate,  who  is  thereupon  elected,  the 
party  going  solid  for  whomsoever  the  majority  has  approved. 
Now  the  determination  of  the  caucus  has  very  often  been 

1  Sec  as  to  tliis  statute  and  the  evils  of  the  present  system  a  thoughtful 
article  in  the  Atlantic  Monthly  for  August,  1891,  by  Mr.  W.  P.  Garrison. 


THE   SENATE  101 


arranged  beforehand  by  tlie  party  managers.  Sometimes  when 
a  vacancy  in  a  senatorship  approaches,  the  aspirants  for  it  put 
themselves  before  the  people  of  the  State.  Their  names  are 
discussed  at  the  State  party  convention  held  for  the  nomina- 
tion of  party  candidates  for  State  offices,  and  a  vote  in  that 
convention  decides  who  shall  be  the  party  nominee  for  the 
senatorship.  This  vote  binds  the  party  within  and  without 
the  State  legislature,  and  at  the  election  of  members  for  the 
State  legislature,  which  immediately  precedes  the  occurrence 
of  the  senatorial  vacancy,  candidates  for  seats  in  that  legis- 
lature are  frequently  expected  to  declare  for  which  aspirant 
to  the  senatorship  they  will,  if  elected,  give  their  votes.^ 
Sometimes  the  aspirant,  who  is  of  course  a  leading  State 
politician,  goes  on  the  stump  in  the  interest  of  those  candi- 
dates for  the  legislature  who  are  prepared  to  support  him, 
and  urges  his  own  claims  while  urging  theirs.^  I  do  not  say 
that  things  have,  in  most  States,  gone  so  far  as  to  make 
the  choice  by  the  legislature  of  some  particular  person  as 
senator  a  foregone  conclusion  when  the  legislature  has  been 
elected.  Circumstances  may  change ;  compromises  may  be 
necessary ;  still,  it  is  now  generally  true  that  a  reduced  free- 
dom of  choice  remains  with  the  legislature.  The  people,  or 
rather  those  wire-pullers  who  manage  the  people  and  act  in 
their  name,  have  usually  settled  the  matter  at  the  election  of 
the  State  legislature.  So  hard  is  it  to  make  any  scheme  of 
indirect  election  work  according  to  its  original  design ;  so  hard 
is  it  to  keep  even  a  written  and  rigid  constitution  from  bend- 
ing and  warping  under  the  actual  forces  of  politics.^ 

1  The  Constitution  of  the  State  of  Nebraska  (1875)  allows  the  electors  in 
voting  for  members  of  the  State  legislature  to  "  express  by  ballot  their  prefer- 
ence for  some  person  for  the  office  of  U.S.  senator.  The  votes  cast  for  such 
candidates  shall  be  canvassed  and  returned  in  the  same  manner  as  for  State 
officers."  This  is  an  attempt  to  evade  and  by  a  side  wind  defeat  the  provision 
of  the  Federal  Constitution  which  vests  the  choice  in  the  legislature. 

2  The  famous  struggle  of  Mr.  Douglas  and  Mr.  Lincoln  for  the  Illinois  sena- 
torship in  1858  was  conducted  in  a  stump  campaign. 

3  A  proposal  frequently  made  of  late  years  (but  never  yet  carried  in  either 
House  of  Congress)  to  amend  the  Federal  Constitution  by  taking  the  election 
of  senators  away  from  the  legislature  in  order  to  vest  it  in  the  people  of  each 
State  is  approved  by  some  judicious  publicists,  wlio  think  that  bad  candidates 
will  liave  less  chance  with  the  party  at  large  and  the  people  than  they  now 
have  in  bodies  apt  to  be  controlled  by  a  knot  of  party  managers.  A  nominat- 
ing convention  is  no  doubt  as  bad  a  body  as  a  State  legislature,  but  nominations 


102  THE   NATIONAL   GOVERNMENT 


Members  of  the  Senate  vote  as  individuals,  tliat  is  to  say,  the 
vote  a  senator  gives  is  his  own  and  not  tliat  of  his  State.  It 
was  otherwise  in  the  Congress  of  the  old  Confederation  before 
1789;  it  is  otherwise  in  the  x^i'esent  Federal  Council  of  the 
German  Empire,  in  which  each  State  votes  as  a  whole,  though 
the  number  of  her  votes  is  proportioned  to  her  population. 
Accordingly,  in  the  American  Senate,  the  two  senators  from  a 
State  may  belong  to  opposite  parties  ;  and  this  often  happens 
in  the  case  of  senators  from  States  in  which  the  two  great 
parties  are  pretty  equally  balanced,  and  the  majority  oscillates 
between  them.^  As  the  State  legislatures  sit  for  short  terms 
(the  larger  of  the  two  houses  usually  for  two  years  only),  a 
senator  has  during  the  greater  part  of  his  six  years'  term  to  look 
for  re-election  not  to  the  present  biit  to  a  future  State  legis- 
lature,^ and  this  circumstance  tends  to  give  him  somewhat  more 
independence. 

The  length  of  the  senatorial  term  was  one  of  the  provisions 
of  the  Constitution  which  were  most  warmly  attacked  and 
defended  in  1788.  A  six  years'  tenure,  it  was  urged,  would 
turn  the  senators  into  dangerous  aristocrats,  forgetful  of  the 
legislature  which  had  appointed  them ;  and  some  went  so  far  as 
to  demand  that  the  legislature  of  a  State  should  have  the  right 
to  recall  its  senators.^  Experience  has  shown  that  the  term  is 
by  no  means  too  long ;  and  its  length  is  one  among  the  causes 
which  have  made  it  easier  for  senators  than  for  members  of  the 
House  to  procure  re-election,  a  result  which,  though  it  offends 
the  doctrinaires  of  democracy,  has  worked  well  for  the  coun- 
try.    Senators  from  the  smaller  States  are  more  frequently 

made  for  popular  elections  will  at  least  be  made  publicly,  whereas  now  candi- 
dates for  election  by  a  legislature  may  be  nominated  secretly;  and  though 
there  may  be  as  much  demagogism  as  at  present,  there  will  probably  be  less 
corruption. 

1  It  was  arranged  from  the  beginning  of  the  Federal  Government  that  the 
two  senatorsliips  from  the  same  State  should  never  be  vacant  at  the  same  time. 

2  If  a  vacancy  occurs  in  a  senatorship  at  a  time  when  the  State  legislature 
is  not  sitting,  the  execiitive  of  the  State  is  empowered  to  fill  it  uj)  until  the  next 
meeting  of  the  State  legislature.  This  power  is  specially  important  if  the 
vacancy  occurs  at  a  time  when  parties  are  equally  divided  in  the  Senate. 

3  This  was  recommended  by  a  Pennsylvanian  Convention,  which  met  after 
the  adoption  of  the  Constitution  to  suggest  amendments.  See  Elliot's  Dehatest, 
ii.  p.  545.  A  State  legislature  sometimes  passes  resolutions  instructing  its 
senators  to  vote  in  a  particular  way,  but  the  senators  are  of  course  in  no  way 
bound  to  regard  such  instructions. 


THE   SENATE  103 


re-elected  than  those  from  the  larger,  because  in  the  small  States 
the  competition  of  ambitious  men  is  less  keen,  politics  less 
changeful,  the  people  perhaps  more  steadily  attached  to  a  man 
whom  they  have  once  honoured  with  their  confidence.  The  sen- 
ator from  such  a  State  generally  finds  it  more  easy  to  maintain 
his  influence  over  his  own  legislature ;  not  to  add  that  if  the  State 
should  be  amenable  to  the  power  of  wealth,  his  wealth  will 
tell  far  more  than  it  could  in  a  large  State.  Yet  no  small 
State  was  ever  more  controlled  by  one  man  than  the  great  State 
of  Pennsylvania  has  been  by  its  "  bosses  "  during  the  last  thirty 
years.  The  average  age  of  the  Senate  is  less  than  might  be 
expected.  Three-fourths  of  its  members  are  under  sixty.  The 
importance  of  the  State  he  represents  makes  no  great  difference 
to  the  influence  which  a  senator  enjoys ;  this  depends  on  his 
talents,  experience,  and  character ;  and  as  the  small  State  sen- 
ators have  often  the  advantage  of  long  service  and  a  safe  seat, 
they  are  often  among  the  most  influential. 

The  Senate  resembles  the  Upper  Houses  of  Europe,  and 
differs  from  those  of  the  British  colonies,  and  of  most  of  the 
States  of  the  Union,  in  being  a  permanent  body.  It  is  an  undy- 
ing body,  with  an  existence  continuous  since  its  first  creation ; 
and  though  it  changes,  it  does  not  change  all  at  once,  as  do 
assemblies  created  by  a  single  popular  election,  but  undergoes 
an  unceasing  process  of  gradual  renewal,  like  a  lake  into 
which  streams  bring  fresh  water  to  replace  that  which  the 
issuing  river  carries  out.  As  Harrington  said  of  the  Venetian 
Senate,  "  being  always  changing,  it  is  forever  the  same."  This 
provision  was  designed  to  give  the  Senate  that  permanency  of 
composition  which  might  qualify  it  to  conduct  or  control  the 
foreign  policy  of  the  nation.  An  incidental  and  more  valuable 
result  has  been  the  creation  of  a  set  of  traditions  and  a  corpo- 
rate spirit  which  have  tended  to  form  habits  of  dignity  and  self- 
respect.  The  new  senators,  being  comparatively  few,  are  readily 
assimilated ;  and  though  the  balance  of  power  shifts  from  one 
party  to  another  according  to  the  predominance  in  the  State 
legislatures  of  one  or  other  party,  it  shifts  more  slowly  than  in 
bodies  directly  chosen  all  at  once,  and  a  policy  is  therefore  less 
apt  to  be  suddenly  reversed. 

The  legislative  powers  of  the  Senate  being,  except  in  one 
point,  the  same  as  those  of  the  House  of  Eepresentatives,  will 


104  THE   NATIONAL   GOVERNMENT  part  i 

be  described  later.  That  one  point  is  a  restriction  as  regards 
money  bills.  On  the  ground  that  it  is  only  by  the  direct  rep- 
resentatives of  the  people  that  taxes  ought  to  be  levied,  and  in 
obvious  imitation  of  the  venerable  English  doctrine,  which  had 
already  found  a  place  in  several  State  constitutions,  the  Consti- 
tution (Art.  i.  §  7)  provides  that  "  All  bills  for  raising  revenue 
shall  originate  in  the  House  of  Eepresentatives,  but  the  Senate 
may  propose  or  concur  with  amendments,  as  on  other  bills."  In 
practice,  while  the  House  strictly  guards  its  right  of  origination, 
the  Senate  largely  exerts  its  power  of  amendment,  and  wrangles 
with  the  House  over  taxes,  and  still  more  keenly  over  appropria- 
tions. Almost  every  session  ends  with  a  dispute,  a  conference, 
a  compromise.  Among  the  rules  (a  few  extracts  from  which, 
touching  some  noteworthy  points,  will  be  found  in  the  Appen- 
dix) there  is  none  providing  for  a  closure  of  debate  (although 
an  attempt  to  introduce  such  a  rule  was  made  by  Henry  Clay, 
and  renewed  in  1890),  nor  any  limiting  the  length  either  of  a 
debate  or  of  a  speech.  The  Senate  is  proud  of  having  con- 
ducted its  business  without  the  aid  of  such  regulations,  and 
this  has  been  due,  not  merely  to  the  small  size  of  the  assembly, 
but  to  the  sense  of  its  dignity  which  has  usually  pervaded  its 
members,  and  to  the  power  which  the  opinion  of  the  whole  body 
has  exercised  on  each.  Where  every  man  knows  his  colleagues 
intimately,  each,  if  he  has  a  character  to  lose,  stands  in  awe  of 
the  others,  and  has  so  strong  a  sense  of  his  own  interest  in 
maintaining  the  moral  authority  of  the  Chamber,  that  he  is  slow 
to  resort  to  methods  which  might  lower  it  in  public  estimation. 
Till  recently,  systematic  obstruction,  or,  as  it  is  called  in 
America,  "filibustering,"  familiar  to  the  House,  was  almost 
unknown  in  the  calmer  air  of  the  Senate.  When  it  was  applied 
some  years  ago  by  the  Democratic  senators  to  stop  a  bill  to 
which  they  strongly  objected,  their  conduct  was  not  disapproved 
by  the  country,  because  the  whole  party,  a  minority  very  little 
smaller  than  the  Republican  majority,  supported  it,  and  people 
believed  that  nothing  but  some  strong  reason  would  have 
induced  the  whole  party  so  to  act.  Accordingly  the  majority 
yielded. 

The  absence  of  a  closure  rule  is  a  fact  of  great  political 
moment.  In  1890  it  prevented  the  passage  of  a  bill,  already 
accepted  by  the  House,  for  placing  Federal  elections  under  the 


THE   SENATE  105 


control  of  Federal  authorities,  a  measure  which  would  have 
powerfulh-  affected  the  Southern  States,  and  might  possibly 
have  raised  civil  commotions. 

Divisions  are  taken,  not  by  separating  the  senators  into 
lobbies  and  counting  them,  as  in  the  British  Parliament,  but 
by  calling  the  names  of  senators  alphabetically.  The  Constitu- 
tion provides  that  one-fifth  of  those  present  may  demand  that 
the  Yeas  and  Xays  be  entered  in  the  journal.  Every  senator 
answers  to  his  name  with  Aye  or  Xo.  He  may,  however,  ask 
the  leave  of  the  Senate  to  abstain  from  voting ;  and  if  he  is 
paired,  he  states,  when  his  name  is  called,  that  he  has  paired 
with  such  and  such  another  senator,  and  is  thereupon  excused. 

When  the  Senate  goes  into  executive  session,  the  galleries 
are  cleared  and  the  doors  closed ;  and  the  obligation  of  secrecy 
is  supposed  to  be  enforced  by  the  penaltj'  of  expulsion  to 
which  a  senator,  disclosing  confidential  proceedings,  makes 
himself  liable.  Practically,  however,  newspaper  men  find 
little  difficulty  in  ascertaining  what  passes  in  secret  session.^ 
The  threatened  punishment  has  never  been  inflicted,  and 
occasions  often  arise  when  senators  feel  it  to  be  desirable  that 
the  public  should  know  what  their  colleagues  have  been  doing. 
There  has  been  for  some  time  past  a  movement  within  the  Sen- 
ate against  maintaining  secrecy,  particularly  with  regard  to  the 
confirming  of  nominations  to  office  ;  and  there  is  also  a  belief 
in  the  country  that  publicity  would  make  for  purity.  But 
while  some  of  the  black  sheep  of  the  Senate  love  darkness 
because  their  works  are  evil,  other  members  of  undoubted 
respectability  defend  the  present  system  because  they  think  it 
supports  the  power  and  dignity  of  their  body. 

1  Secrecy  is  said  to  be  better  observed  in  the  case  of  discussions  on  treaties 
than  where  appointments  are  in  question.  Some  years  ago  a  Western  news- 
paper published  an  account  of  what  took  place  in  a  secret  session.  A  commit- 
tee appointed  to  inquire  into  the  matter  questioned  every  senator.  Each  swore 
that  he  had  not  divulged  the  proceedings,  and  the  newspaper  people  also  swore 
that  their  information  did  not  come  from  any  senator.  Nothing  could  be 
ascertained,  and  nobody  was  punished. 


CHAPTER  XI 

THE    SENATE    AS    AN    EXECUTIVE    AND    JUDICIAL    BODY 

The  Senate  is  not  only  a  legislative  but  also  an  executive 
Chamber ;  in  fact  in  its  early  days  the  executive  functions 
seem  to  have  been  thought  the  more  important ;  and  Ham- 
ilton went  so  far  as  to  speak  of  the  national  executive 
authority  as  divided  between  two  branches,  the  President  and 
the  Senate.  These  executive  functions  are  two,  the  power  of 
approving  treaties,  and  that  of  confirming  nominations  to 
office  submitted  by  the  President. 

To  what  has  already  been  said  regarding  the  functions  of 
the  President  and  Senate  as  regards  treaties  (see  above,  Chap- 
ter VI.)  I  need  only  add  that  the  Senate  through  its  right  of 
confirming  or  rejecting  engagements  with  foreign  powers, 
secures  a  general  control  over  foreign  policy  ;  though  it  must 
be  remembered  that  many  of  the  most  important  acts  done  in 
this  sphere  (as  for  instance  the  movement  of  troops  or  ships) 
are  purely  executive  acts,  not  falling  under  this  control.  It  is 
in  the  discretion  of  the  President  whether  he  will  communi- 
cate current  negotiations  to  it  and  take  its  advice  upon 
them,  or  will  say  nothing  till  he  lays  a  completed  treaty 
before  it.  One  or  other  course  is  from  time  to  time  followed, 
according  to  the  nature  of  the  case,  or  the  degree  of  friendli- 
ness existing  between  the  President  and  the  majority  of  the 
Senate.  But  in  general,  the  President's  best  policy  is  to  keep 
the  leaders  of  tlie  senatorial  majority,  and  in  particular  the 
committee  on  Foreign  Relations,  informed  of  the  progress  of 
any  pending  negotiation.  He  thus  feels  the  piilse  of  the 
Senate,  which,  like  other  assemblies,  has  a  collective  self- 
esteem  leading  it  to  strive  for  all  the  information  and  power  it 
can  secure,  and  while  keeping  it  in  good  humour,  can  foresee 
what  kind  of  arrangement  it  may  be  induced  to  sanction.    The 

106 


CHAP.  XI     SENATE  :    EXECUTIVE   AND  JUDICLVL  BODY  107 

right  of  going  into  secret  session  enables  the  whole  Senate  to 
consider  despatches  communicated  by  the  President ;  and  the 
more  important  ones,  having  first  been  submitted  to  the  For- 
eign Eelations  committee,  are  thus  occasionally  discussed 
without  the  disadvantage  of  publicity.  Of  course  no  momen- 
tous secret  can  be  long  kept,  even  by  the  committee,  according 
to  the  proverb  in  the  Elder  Edda —  "Tell  one  man  thy  secret, 
but  not  two ;  if  three  know,  the  world  knows." 

This  control  of  foreign  policy  by  the  Senate  goes  far  to 
meet  the  difficulties  which  every  free  government  finds  in 
dealing  with  foreign  Powers.  If  each  step  to  be  taken  must 
be  previously  submitted  to  the  governing  assembly,  the  nation 
is  forced  to  show  its  whole  hand,  and  precious  opportunities 
of  winning  an  ally  or  striking  a  bargain  may  be  lost.  If  on 
the  other  hand  the  executive  is  permitted  to  conduct  nego- 
tiations in  secret,  there  is  ahvays  the  risk,  either  that  the  as- 
sembly may  disavow  what  has  been  done,  a  risk  which  makes 
foreign  states  legitimately  suspicious  and  unwilling  to  nego- 
tiate, or  that  the  nation  may  have  to  ratify,  because  it  feels 
bound  in  honour  by  the  act  of  its  executive  agents,  arrange- 
ments which  its  judgment  condemns.  The  frequent  participa- 
tion of  the  Senate  in  negotiations  diminishes  these  difficulties, 
because  it  apprises  the  executive  of  what  the  judgment  of 
the  ratifying  body  is  likely  to  be,  and  it  commits  that  body 
by  advance.  The  necessity  of  ratification  by  the  Senate  in 
order  to  give  effect  to  a  treaty,  enables  the  country  to  retire 
from  a  doubtful  bargain,  though  in  a  way  which  other  Powers 
find  disagreeable,  as  England  did  when  the  Senate  rejected  the 
Eeverdy  Johnson  treaty  of  1869.  European  statesmen  may 
ask  what  becomes  under  such  a  system  of  the  boldness  and 
promptitude  so  often  needed  to  effect  a  successful  coup  in  for- 
eign policy,  or  how  a  consistent  attitude  can  be  maintained  if 
there  is  in  the  chairman  of  the  Foreign  Relations  committee  a 
sort  of  second  foreign  secretary.  The  answer  is  that  America 
is  not  Europe.  The  problems  which  the  Foreign  Office  of  the 
United  States  has  to  deal  with  are  far  fewer  and  usually  far 
simpler  than  those  of  the  Old  World.  The  republic  keeps 
consistently  to  her  own  side  of  the  Atlantic ;  nor  is  it  the 
least  of  the  merits  of  the  system  of  senatorial  control  that  it 
has  tended,  by  discouraging  the  executive  from  schemes  which 


108  THE   NATIONAL   GOVERNMENT 


may  prove  resultless,  to  diminish  the  taste  for  foreign  enter- 
prises, and  to  save  the  country  from  being  entangled  with  al- 
liances, protectorates,  responsibilities  of  all  sorts  beyond  its 
own  frontiers.  It  is  the  easier  for  the  Americans  to  practise 
this  reserve  because  they  need  no  alliances,  standing  unassail- 
able in  their  own  hemisphere.  The  circumstances  of  England, 
with  her  powerful  European  neighbours  her  Indian  Empire, 
and  her  colonies  scattered  over  the  world,  are  widely  different. 
Yet  different  as  the  circumstances  of  England  are,  the  day  may 
come  when  in  England  the  question  of  limiting  the  at  present 
wide  discretion  of  the  executive  iu  foreign  affairs  will  have  to 
be  dealt  with ;  ^  and  the  example  of  the  American  Senate  will 
then  deserve  and  receive  careful  study. 

The  Senate  may  and  occasionally  does  amend  a  treaty,  and 
return  it  amended  to  the  President.  There  is  nothing  to  pre- 
vent it  from  proposing  a  draft  treaty  to  him,  or  asking  him  to 
prepare  one,  but  this  is  not  the  practice.  Eor  ratification  a 
vote  of  two-thirds  of  the  senators  present  is  required.  This 
gives  great  power  to  a  vexatious  minority,  and  increases  the 
danger,  evidenced  by  several  incidents  in  the  history  of  the 
Union,  that  the  Senate  or  a  faction  in  it  may  deal  with  foreign 
policy  in  a  narrow,  sectional,  electioneering  spirit.  When  the 
interest  of  any  group  of  States  is,  or  is  supposed  to  be,  against 
the  making  of  a  given  treaty,  that  treaty  may  be  defeated  by 
the  senators  from  those  States.  They  tell  the  other  senators 
of  their  own  party  that  the  prospects  of  the  party  in  the  dis- 
trict of  the  country  whence  they  come  will  be  improved  if  the 
treaty  is  rejected  and  a  bold  aggressive  line  is  taken  in  further 
negotiatioxTS.  Some  of  these  senators,  who  care  more  for  the 
party  than  for  justice  or  the  common  interests  of  the  country, 
rally  to  the  cry,  and  all  the  more  gladly  if  their  party  is  op- 
posed to  the  President  in  power,  because  in  defeating  the 
treaty  they  humiliate  his  administration.  Thus  the  treaty 
may  be  rejected,  and  the  settlement  of  the  question  at  issue 
indefinitely  postponed.  It  may  be  thought  that  a  party  acting 
in  this  vexatious  way  will  suffer  in  public  esteem.     This  hap- 

1  Parliament  of  course  raay  and  sometimes  does  interfere ;  but  the  majority 
which  supports  the  ministry  of  the  day  usually  forbears  to  press  the  Foreign 
Office  for  information  which  it  is  declared  to  be  undesirable  to  furnish. 

In  1886  a  resolution  was  all  but  carried  in  the  House  of  Commons,  desiring 
all  treaties  to  be  laid  before  Parliament  for  its  approval  before  being  finally 
concluded. 


CHAP.  XI     SENATE  :    EXECUTIVE  AND  JUDICLiL  BODY  109 

pens  in  extreme  cases;  but  the  public  are  usually  so  indif- 
ferent to  foreign  affairs,  and  so  little  skilled  in  judging  of 
them,  that  offences  of  the  kind  described  may  be  committed 
with  practical  impunity.  It  is  harder  to  fix  responsibility  on 
a  body  of  senators  than  on  the  executive;  and  whereas  the 
executive  has  usually  an  interest  in  settling  diplomatic  troubles, 
whose  continuance  it  finds  annoying,  the  Senate  has  no  such 
interest,  but  is  willing  to  keep  them  open  so  long  as  some 
political  advantage  can  be  sucked  out  of  them.  The  habit  of 
using  foreign  policy  for  electioneering  purposes  is  not  confined 
to  America.  We  have  seen  it  in  England,  we  have  seen  it  in 
France,  we  have  seen  it  even  in  monarchical  Germany.  But 
in  America  the  treaty-confirming  power  of  the  Senate  opens 
a  particularly  easy  and  tempting  door  to  such  practices. 

The  other  executive  function  of  the  Senate,  that  of  con- 
firming nominations  submitted  by  the  President,  has  been 
discussed  in  the  chapter  on  the  jDOwers  of  that  officer.  It  is 
there  explained  how  senators  have  used  their  right  of  confir- 
mation to  secure  for  themselves  a  huge  mass  of  Federal 
patronage,  and  how  by  means  of  this  right,  a  majority  hostile  to 
the  President  can  thwart  and  annoy  him.  Sometimes  he  ought 
to  be  thwarted :  yet  the  protection  which  the  Senate  provides 
against  abuses  of  his  nominating  power  is  far  from  complete. 

Does  the  control  of  the  Senate  operate  to  prevent  abuses  of 
patronage  by  the  President  ?  To  some  extent  it  does,  yet  less 
completely  than  could  be  wished.  When  the  majority  belongs 
to  the  same  party  as  the  President,  appointments  are  usually 
arranged,  or  to  use  a  familiar  expression,  "squared,"  between 
them,  with  a  view  primarily  to  jDarty  interests.  When  the 
majority  is  opposed  to  the  President,  they  are  tempted  to  agree 
to  his  worst  appointments,  because  such  appointments  discredit 
hnn  and  his  party  Avith  the  country,  and  become  a  theme  of 
hostile  comment  in  the  next  electioneering  campaign.  As  the 
initiative  is  his,  it  is  the  nominating  President,  and  not  the 
confirming  Senate,  whom  public  opinion  will  condemn.  These 
things  being  so,  it  may  be  doubted  whether  this  exeeiitive  func- 
tion of  the  Senate  is  now  a  valuable  part  of  the  Constitution. 
It  was  designed  to  prevent  the  President  from  making  himself 
a  tyrant  by  filling  the  great  offices  with  his  accomplices  or  tools. 
That  danger  has  passed  away,  if  it  ever  existed ;  and  Congress 
has  other  means  of  muzzling  an  ambitious  chief  magistrate. 


110  THE   2^AT10NAL   GOVERNMENT  part  i 

The  more  Mly  responsibility  for  appointments  can  be  concen- 
trated upon  him,  and  the  fewer  the  secret  influences  to  which 
he  is  exposed,  the  better  will  his  appointments  be.  On  the 
other  hand,  it  must  be  admitted  that  the  participation  of  the 
Senate  causes  in  practice  less  friction  and  delay  than  might 
have  been  expected  from  a  dual  control.  The  appointments  to 
the  cabinet  offices  are  confirmed  as  a  matter  of  course.  Those 
of  diplomatic  officers  are  seldom  rejected.  ''Little  tiffs"  are 
frequent  when  the  senatorial  majority  is  in  opposition  to  the 
executive,  but  the  machinery,  if  it  does  not  work  smoothly, 
works  well  enough  to  carry  on  the  ordinary  business  of  the 
country,  though  a  European  observer,  surprised  that  a  demo- 
cratic country  allows  such  important  business  to  be  transacted 
with  closed  doors,  is  inclined  to  agree  with  the  view  lately 
advanced  in  the  Senate  that  nominations  ought  to  be  discussed 
publicly  rather  than  in  secret  executive  session. 

The  judicial  function  of  the  Senate  is  to  sit  as  a  High  Court 
for  the  trial  of  persons  impeached  by  the  House  of  Representa- 
tives. The  senators  "are  on  oath  or  affirmation,"  and  a  vote 
of  two-thirds  of  those  present  is  needed  for  a  conviction.  Of 
the  process,  as  affecting  the  President,  I  have  spoken  in 
Chapter  V.  It  is  applicable  to  other  officials.  Besides  Presi- 
dent Johnson,  six  persons  in  all  have  been  impeached,  viz.:  — 

Four  Federal  judges,  of  whom  two  were  acquitted,  and  two 
convicted,  one  for  violence  and  drunkenness,  the  other  for 
having  joined  the  Secessionists  of  1861.  Impeachment  is  the 
only  means  by  which  a  Federal  judge  can  be  got  rid  of. 

One  senator,  who  v/as  acquitted  for  want  of  jurisdiction,  the 
Senate  deciding  that  a  seuatorship  is  not  a  "  civil  office  "  within 
the  meaning  of  Art.  iii.  §  4  of  the  Constitution. 

One  minister,  a  secretary  of  war,  who  resigned  before  the 
impeachment  was  actually  preferred,  and  escaped  on  the 
ground  that  being  a  private  person  he  was  not  impeachable. 

Earely  as  this  method  of  proceeding  has  been  employed,  it 
could  not  be  dispensed  with ;  and  it  is  better  that  the  Senate 
should  try  cases  in  which  a  political  element  is  usually  pres- 
ent, than  that  the  impartiality  of  the  Supreme  court  should  be 
exposed  to  the  criticism  it  would  have  to  bear,  did  political 
questions  come  before  it.  Many  senators  are  or  have  been 
lawyers  of  eminence,  so  that  so  far  as  legal  knov/ledge  goes 
they  are  competent  members  of  a  court. 


CHAPTER   XII 

THE    SENATE  :    ITS    WORKING    AND    INFLUENCE 

The  Americans  consider  the  Senate  one  of  the  successes  of 
their  Constitution,  a  worthy  nionuinent  of  tlie  wisdom  and 
foresight  of  its  founders.  Foreign  observers  have  repeated 
this  praise,  and  have  perliaps,  in  tlieir  less  perfect  knowledge, 
sounded  it  even  more  loudly. 

The  aims  with  which  the  Senate  was  created,  the  purposes 
it  was  to  fulhl,  are  set  forth,  under  the  form  of  answers  to 
objections,  in  five  letters  (Ixi.-lxv.),  all  by  Alexander  Hamil- 
ton, in  the  Federalist}     These  aims  were  the  five  following :  — 

To  conciliate  the  spirit  of  independence  in  the  several  States, 
by  giving  each,  however  small,  equal  representation  with  every 
other,  however  large,  in  one  branch  of  the  national  government. 

To  create  a  council  qualified,  by  its  moderate  size  and  the 
experience  of  its  members,  to  advise  and  check  the  President 
in  the  exercise  of  his  powers  of  appointing  to  office  and  con- 
cluding treaties. 

To  restrain  the  impetuosity  and  fickleness  of  the  popular 
House,  and  so  guard  against  the  effects  of  gusts  of  passion  or 
sudden  changes  of  opinion  in  the  people. 

To  provide  a  body  of  men  whose  greater  experience,  longer 
term  of  membership,  and  comparative  independence  of  popular 
election,  would  make  them  an  element  of  stability  in  the  gov- 
ernment of  the  nation,  enabling  it  to  maintain  its  character  in 
the  eyes  of  foreign  States,  and  to  preserve  a  continuity  of 
policy  at  home  and  abroad. 

To  establish  a  Court  proper  for  the  trial  of  impeachments,  a 
remedy  deemed  necessary  to  prevent  abuse  of  power  by  the 
executive. 

1  See  also  Hamilton's  speeches  in  the  New  York  Convention.  —  Elliot's 
Debates,  ii.  p.  301  sqq. 

m 


112  THE   NATIONAL   GOVERNMENT  part  i 

All  of  these  five  objects  have  been  more  or  less  perfectly 
attained ;  and  the  Senate  has  acquired  a  position  in  the  gov- 
ernment which  Hamilton  scarcely  ventured  to  hope  for.  In 
1788  he  wrote :  "  Against  the  force  of  the  immediate  repre- 
sentatives of  the  people  nothing  will  be  able  to  maintain  even 
the  constitutional  authority  of  the  Senate,  but  such  a  display 
of  enlightened  policy,  and  attachment  to  the  public  good,  as 
will  divide  with  the  House  of  Representatives  the  affections 
and  support  of  the  entire  body  of  the  people  themselves." 

It  may  be  doubted  whether  the  Senate  has  excelled  the 
House  in  attachment  to  the  public  good ;  but  it  has  certainly 
shown  greater  capacity  for  managing  the  public  business,  and 
has  won  the  respect,  if  not  the  affections,  of  the  people,  by  its 
sustained  intellectual  power. 

The  Federalist  did  not  think  it  necessary  to  state,  nor  have 
Americans  generally  realized,  that  this  masterpiece  of  the 
Constitution-makers  was  in  fact  a  happy  accident.  No  one  in 
the  Convention  of  1787  set  out  with  the  idea  of  such  a  Senate 
as  ultimately  emerged  from  their  deliberations.  It  grew  up 
under  the  hands  of  the  Convention,  as  the  result  of  the  neces- 
sity for  reconciling  the  conflicting  demands  of  the  large  and 
the  small  States.  The  concession  of  equal  representation  in 
the  Senate  induced  the  small  States  to  accept  the  principle  of 
representation  according  to  population  in  the  House  of  Rep- 
resentatives ;  and  a  series  of  compromises  between  the  advo- 
cates of  popular  power,  as  embodied  in  the  House,  and  those 
of  monarchical  power,  as  embodied  in  the  President,  led  to  the 
allotment  of  attributes  and  functions  which  have  made  the 
Senate  what  it  is.  When  the  work  which  they  had  almost 
unconsciously  perfected  was  finished,  the  leaders  of  the  Con- 
vention perceived  its  excellence,  and  defended  it  by  arguments 
in  which  we  feel  the  note  of  sincere  conviction.  Yet  the  con- 
ception they  formed  of  it  differed  from  the  reality  which  has 
been  evolved.  Although  they  had  created  it  as  a  branch  of 
the  legislature,  they  thought  of  it  as  being  first  and  foremost 
a  body  with  executive  functions.  And  this,  at  first,  it  was. 
The  traditions  of  the  old  Congress  of  the  Confederation,  in 
which  the  delegates  of  the  States  voted  by  States,  the  still 
earlier  traditions  of  the  executive  councils,  which  advised  the 
governors  of  the  colonies  while  still  subject  to  the  British 


CHAi'.  XII        SENATE:    WORKING  AND   INFLUENCE  113 

Crown,  clung  about  the  Senate  and  affected  the  minds  of  the 
senators.  It  was  a  small  body,  originally  of  twenty-six,  even 
in  1810  of  thirty-four  members  only,  a  body  not  ill  fitted  for 
executive  work.  Its  members,  regarding  themselves  as  a  sort 
of  congress  of  ambassadors  from  their  respective  States,  were 
accustomed  to  refer  for  advice  and  instructions  each  to  his 
State  legislature.  So  late  as  1828,  a  senator  after  arguing 
strongly  against  a  measure  declared  that  he  would  neverthe- 
less vote  for  it,  because  he  believed  his  State  to  be  in  its 
favour.^  For  the  first  five  years  of  its  existence,  the  Senate 
sat  with  closed  doors,  occupying  itself  chiefly  with  the  confi- 
dential business  of  appointments  and  treaties,  and  conferring 
in  private  with  the  ministers  of  the  President.  Not  till  1816 
did  it  create,  in  imitation  of  the  House,  those  Standing  Com- 
mittees which  the  experience  of  the  House  had  shown  to  be, 
in  bodies  where  the  executive  ministers  do  not  sit,  the  neces- 
sary organs  for  dealing  with  legislative  business.  Its  present 
character  as  a  legislative  body,  not  less  active  and  powerful 
than  the  other  branch  of  Congress,  is  the  result  of  a  long 
process  of  evolution,  a  process  possible  (as  will  be  more  fully 
explained  hereafter)  even  under  the  rigid  Constitution  of  the 
United  States,  because  the  language  of  the  sections  which 
define  the  competence  of  the  Senate  is  wide  and  general.  But 
in  gaining  legislative  authority,  it  has  not  lost  its  executive 
functions,  although  those  which  relate  to  treaties  are  largely 
exercised  on  the  advice  of  the  standing  Committee  on  For- 
eign Kelations.  And  as  respects  these  executive  functions 
it  stands  alone  in  the  world.  Xo  European  state,  no  British 
colony,  entrusts  to  an  elective  assembly  that  direct  participa- 
tion in  executive  business  which  the  Senate  enjoys. 

What  is  meant  by  saying  that  the  Senate  has  proved  a 
success  ? 

It  has  succeeded  by  effecting  that  chief  object  of  the  Fathers 
of  the  Constitution,  the  creation  of  a  centre  of  gravity  in  the 
government,  an  authority  able  to  correct  and  check  on  the  one 
hand  the  ''  democratic   recklessness "  of  the   House,  on  the 

1  A  similar  statement  was  made  in  1883  by  a  senator  from  Arkansas  in  justi- 
fying his  vote  for  a  bill  he  disapproved.  But  the  fact  that  from  early  days 
downwards  the  two  senators  from  a  State  might  (and  did)  vote  against  one 
another  shows  that  the  true  view  of  the  senator  is  that  he  represents  the 
people  and  not  the  government  of  his  State. 

VOL.  I  I 


114  THE   NATIONAL   GOVEKNMENT  pakt  i 

other  the  "  monarchical  ambition  "  of  the  President.  Placed 
between  the  two,  it  is  necessarily  the  rival  and  often  the  oppo- 
nent of  both.  Tlie  House  can  accomplish  nothing  without  its 
concurrence.  The  President  can  be  checkmated  by  its  resist- 
ance. These  are,  so  to  speak,  negative  or  prohibitive  suc- 
cesses. It  has  achieved  less  in  the  way  of  positive  work, 
whether  of  initiating  good  legislation  or  of  improving  the 
measures  which  the  House  sends  it.  But  the  whole  scheme 
of  the  American  Constitution  tends  to  put  stability  above 
activity,  to  sacrifice  the  productive  energies  of  the  bodies  it 
creates  to  their  power  of  resisting  changes  in  the  general 
fabric  of  the  government.  The  Senate  has  succeeded  in  mak- 
ing itself  eminent  and  respected.  It  has  drawn  the  best  talent 
of  the  nation,  so  far  as  that  talent  flows  to  politics,  into  its 
body,  has  established  an  intellectual  supremacy,  has  furnished 
a  vantage  ground  from  which  men  of  ability  may  speak  with 
authority  to  their  fellow-citizens. 

To  what  causes  are  these  successes  to  be  ascribed  ?  Hamil- 
ton assumed  that  the  Senate  would  be  weaker  than  the  House 
of  Representatives,  because  it  would  not  so  directly  spring 
from,  speak  for,  be  looked  to  by,  the  people.  This  was  a 
natural  view,  especially  as  the  analogy  between  the  position 
of  the  Senate  towards  the  House  of  Representatives  in  Amer- 
ica, and  that  of  the  House  of  Lords  towards  the  House  of 
Commons  in  Great  Britain,  an  analogy  constantly  present  to 
the  men  of  1787,  seemed  to  suggest  that  the  larger  and  more 
popular  chamber  must  dwarf  and  overpower  the  smaller  one. 
But  the  Senate  has  proved  no  less  strong,  and  more  intellect- 
ually influential,  than  its  sister  House  of  Congress.  The 
analogy  was  unsound,  because  the  British  House  of  Lords  is 
hereditary  and  the  Senate  representative.  In  these  days  no 
hereditary  assembly,  be  its  members  ever  so  able,  ever  so 
wealthy,  ever  so  socially  powerful,  can  speak  with  the  au- 
thority which  belongs  to  those  who  speak  for  the  people. 
Mirabeau's  famous  Avords  in  the  Salle  des  Menus  at  Versailles, 
"  We  are  here  by  the  will  of  the  people,  and  nothing  but 
bayonets  shall  send  us  hence,"  express  the  whole  current  of  mod- 
ern feeling.  Now  the  Senate,  albeit  not  chosen  by  direct  pop- 
ular election,  does  represent  the  people  ;  and  what  it  may  lose 
through  not  standing  in  immediate  contact  with  the  masses. 


CHAP.  XII        SENATE:    WORKING   AND   INFLUENCE  115 

it  gains  in  representing  sncli  ancient  and  powerful  common- 
wealths as  the  States.  A  senator  from  New  York  or  Penn- 
sylvania speaks  for,  and  is  responsible  to,  millions  of  men. 
No  wonder  he  has  an  authority  beyond  that  of  the  long- 
descended  nobles  of  Prussia,  or  the  peers  of  Britain  whose 
possessions  stretch  over  whole  counties. 

This  is  the  first  reason  for  the  strength  of  the  Senate,  as 
compared  with  the  upper  chambers  of  other  countries.  It  is 
built  on  a  wide  and  solid  foundation  of  choice  by  the  people 
and  consequent  responsibility  to  them.  A  second  cause  is  to 
be  found  in  its  small  size.  A  small  body  educates  its  members 
better  than  a  large  one,  because  each  member  has  more  to  do, 
sooner  masters  the  business  not  only  of  his  committee  but  of 
the  whole  body,  feels  a  livelier  sense  of  the  significance  of  his 
own  action  in  bringing  about  collective  action.  There  is  less 
disposition  to  abuse  the  freedom  of  debate.  Party  spirit  may 
be  as  intense  as  in  great  assemblies,  yet  it  is  mitigated  by  the 
wish  to  keep  on  friendly  terms  with  those  whom,  however 
much  you  may  dislike  them,  you  have  constantly  to  meet,  and 
by  the  feeling  of  a  common  interest  in  sustaining  the  author- 
ity of  the  body.  A  senator  soon  gets  to  know  each  of  his 
colleagues  —  they  were  originally  only  twenty-five  —  and  Avhat 
each  of  them  thinks  of  him ;  he  becomes  sensitive  to  their  opin- 
ion ;  he  is  less  inclined  to  pose  before  them,  however  he  may 
pose  before  the  public.  Thus  the  Senate  formed,  in  its  child- 
hood, better  habits  in  discussing  and  transacting  its  business 
than  would  have  been  formed  by  a  large  assembly ;  and  these 
habits  its  maturer  age  retains.  Its  comparative  permanence 
has  also  worked  for  good.  Six  years,  which  seem  a  short 
term  in  Europe,  are  in  America  a  long  term  when  compared 
with  the  two  years  for  which  the  House  of  Eepresentatives 
and  the  Assemblies  of  nearly  all  the  States  are  elected,  long 
also  when  compared  with  the  swiftness  of  change  in  American 
politics.  A  senator  has  the  opportunity  of  thoroughly  learn- 
ing his  work,  and  of  proving  that  he  has  learnt  it.  He  be- 
comes slightly  more  independent  of  his  constituency,  which  in 
America,  where  politicians  catch  at  every  passing  breeze  of 
opinion,  is  a  clear  gain.  He  is  relieved  a  little,  though  onlv  a 
little,  of  the  duty  of  going  on  the  stump  in  his  State,  and 
maintaining  his  influence  among  local  politicians  there. 


116  THE   NATIONAL   GOVERNMENT  pakt  i 

The  smallness  and  the  perinanerice  of  the  Senate  have 
however  another  important  influence  on  its  character.  They 
contribute  to  one  main  cause  of  its  success,  the  superior 
intellectual  quality  of  its  members.  Every  European  who  has 
described  it,  has  dwelt  upon  the' capacity  of  those  who  compose 
it,  and  most  have  followed  Tocqueville  in  attributing  this 
capacity  to  the  method  of  double  election.  The  choice  of 
senators  by  the  State  legislature  is  supposed  (but  I  think 
erroneously)  to  have  proved  a  better  means  than  direct  choice 
by  the  people  of  discovering  and  selecting  the  fittest  men.  I 
have  already  remarked  that  the  legislatures  now  do  little  more 
than  register  and  formally  complete  a  choice  already  made  by 
the  party  managers,  and  perhaps  ratified  in  the  party  conven- 
tion, and  am  inclined  to  believe  that  direct  popular  election 
would  work  better.  But  apart  from  this  recent  development, 
and  reviewing  the  whole  hundred  years'  history  of  the  Senate, 
the  true  explanation  of  its  capacity  is  to  be  found  in  the 
superior  attraction  which  it  has  for  the  ablest  and  most  ambi- 
tious men.  A  senator  has  more  power  than  a  member  of  the 
House,  more  dignity,  a  longer  term  of  service,  a  more  in- 
dependent position.  Hence  every  Federal  politician  aims  at 
a  senatorship,  and  looks  on  the  place  of  Eepresentative  as  a 
stepping-stone  to  what  may  fairly  be  called  an  Upper  House, 
because  it  is  the  House  to  which  Eepresentatives  seek  to 
mount.  It  is  no  more  surprising  that  the  average  capacity  of 
the  Senate  should  surpass  that  of  the  House,  than  that  the 
average  cabinet  minister  of  Europe  should  be  abler  than  the 
average  member  of  the  legislature. 

What  is  more,  the  Senate  so  trains  its  members  as  to 
improve  their  political  efficiency.  Several  years  of  service  in 
a  small  body,  with  important  and  delicate  executive  work,  are 
worth  twice  as  many  years  of  jostling  in  the  crowd  of  repre- 
sentatives at  the  other  end  of  the  Capitol.  If  the  Senate  does 
not  find  the  man  who  enters  it  already  superior  to  the  average 
of  Federal  politicians,  it  makes  him  superior.  But  natural 
selection,  as  has  been  said,  usually  seats  upon  its  benches  the 
best  ability  of  the  country  that  has  flowed  into  political  life, 
and  would  do  so  no  less  were  the  election  in  form  a  direct  one 
by  the  people  at  the  polls. 

Most  of  the  leading  men  of  the  last  sixty  years  have  sat  in 


CHAP.  XII        SENATE  :    WOEKING  AND   INFLUENCE  117 


the  Senate,  and  in  it  were  delivered  most  of  the  famous 
speeches  which  illumine,  though  too  rarely,  the  wearisome 
debates  over  State  rights  and  slavery  from  1825  till  1860. 
One  of  these  debates,  that  in  the  beginning  of  1830,  which 
called  forth  Daniel  Webster's  majestic  defence  of  the  Consti- 
tution, Avas  long  called  x)<^'>'  excellence  "  the  great  debate  in  the 
Senate."  ^ 

Of  the  76  senators  who  sat  in  the  forty-eighth  Congress 
(1883-85)  31  had  sat  in  the  other  House  of  Congress,  and 
49  had  served  in  State  legislatures.^  In  the  fifty-second  Con- 
gress (1891-93)  out  of  88  senators,  34  had  sat  in  the  House 
of  Kepresentafcives,  and  50  in  State  legislatures.  Many  had 
been  judges  or  State  governors  ;  many  had  sat  in  State  con- 
ventions. Nearly  all  had  held  some  public  function.  A  man 
must  have  had  considerable  experience  of  affairs,  and  of 
human  nature  in  its  less  engaging  aspects,  before  he  enters 
this  august  conclave.  But  experience  is  not  all  gain.  Prac- 
tice makes  perfect  in  evil-doing  no  less  than  in  Avell-doing. 
The  habits  of  local  politics  and  of  work  in  the  House  of  Rep- 
resentatives by  which  the  senators  have  been  trained,  while 
they  develop  shrewdness  and  quickness  in  all  characters,  tell 
injuriously  on  characters  of  the  meaner  sort,  leaving  men's 
views  narrow,  and  giving  them  a  taste  as  well  as  a  talent  for 
intrigue. 

The  chamber  in  which  the  Senate  meets  is  rectangular,  but 
the  part  occupied  by  the  seats  is  semicircular  in  form,  the 
Vice-President  of  the  United  States,  who  acts  as  presiding 
officer,  having  his  chair  on  a  marble  dais,  slightl}^  raised,  in 
the  centre  of  the  chord,  with  the  senators  all  turned  towards 
him  as  they  sit  in  curving  rows,  each  in  an  arm-chair,  with  a 
desk  in  front  of  it.  The  floor  is  about  as  large  as  the  whole 
superficial  area  of  the  British  House  of  Commons,  but  as  there 
are  great  galleries  on  all  four   sides,  running  back  over  the 

1  In  those  days  the  Senate  sat  in  that  smaller  chamber  which  is  now  occu- 
pied by  the  Supreme  Federal  Court. 

2  I  cannot  be  sure  of  the  absolute  actual  accuracy  of  these  fijiures,  which  I 
have  compiled  from  the  Congressional  Directorij,  because  some  Senators  do 
not  set  forth  the  whole  of  their  political  career.  The  proportion  of  senators 
who  have  previously  been  members  of  the  House  of  Representatives  was 
larger  among  the  senators  from  the  older  States  both  in  1884  and  in  1892  than 
it  is  in  the  West. 


118  THE   NATIONAL  GOVERNMENT  part  i 

lobbies,  the  upper  part  of  the  chamber  and  its  total  air-space 
much  exceeds  that  of  the  English  house.  One  of  these  gal- 
leries is  appropriated  to  the  President  of  the  United  States ; 
the  otliers  to  ladies,  diplomatic  representatives,  the  press,  and 
the  public.  Behind  the  senatorial  chairs  and  desks  there  is 
an  open  space  into  which  strangers  can  be  brought  by  the 
senators,  who  sit  and  talk  on  the  sofas  there  placed.  Members 
of  foreign  legislatures  are  allowed  access  to  this  outer  "  floor 
of  the  Senate."  There  is,  especially  when  the  galleries  are 
empty,  a  slight  echo  in  the  room,  which  obliges  most  speakers 
to  strain  their  voices.  Two  or  three  pictures  on  the  walls 
somewhat  relieve  the  cold  tone  of  the  chamber,  with  its  mar- 
ble platform  and  sides  unpierced  by  windows,  for  the  light 
enters  through  glass  compartments  in  the  ceiling. 

A  senator  always  addresses  the  Chair  "  Mr.  President,"  and 
refers  to  other  senators  by  their  States,  "The  senator  from 
Ohio,"  "  The  senator  from  Tennessee."  When  two  senators  rise 
at  the  same  moment,  the  Chair  calls  on  one,  indicating  him  by 
his  State,  "  The  senator  from  Minnesota  has  the  floor."  ^  Sena- 
tors of  the  Democratic  party  apparently  always  have  sat  on  the 
right  of  the  chair,  Republican  senators  on  the  left ;  but,  as 
already  explained,  the  parties  do  not  face  one  another.  The 
impression  which  the  place  makes  on  a  visitor  is  one  of  busi- 
ness-like gravity,  a  gravity  which  though  plain  is  dignified. 
It  has  the  air  not  so  much  of  a  popular  assembly  as  of  a  diplo- 
matic congress.  The  English  House  of  Lords,  with  its  fretted 
roof  and  windows  rich  with  the  figures  of  departed  kings,  its 
majestic  throne,  its  Lord  Chancellor  in  his  wig  on  the  woolsack, 
its  benches  of  lawn-sleeved  bishops,  its  bar  where  the  Commons 
throng  at  a  great  debate,  is  not  only  more  gorgeous  and  pictur- 
esque in  externals,  but  appeals  far  more  powerfully  to  the  histo- 
rical imagination,  for  it  seems  to  carry  the  middle  ages  down 
into  the  modern  world.  The  Senate  is  modern,  severe,  and  prac- 
tical.    So,  too,  few  debates  in  the  Senate  rise  to  the  level  of  the 

1  A  late  President  of  the  Senate  was  in  tlie  habit  of  distinguishing  the  two 
senators  from  the  State  of  Arkansas,  by  calling  on  one  as  the  senator  for 
"Arkansas"  (pronounced  as  writteu,  with  accent  on  the  penult),  and  the 
other  as  the  senator  for  "  Arkansaw,"  with  the  second  syllable  short.  As 
Europeans  often  ask  which  is  the  correct  pronunciation,  I  may  say  that  both 
are  in  common  use.  But  the  legislature  of  Arkansas  has  lately  by  a  "  joint 
resolution  "  declared  "  Arkansaw  "  to  be  right. 


CHAP.  XII        SENATE :    WORKING   AND   INFLUENCE  119 

best  debates  in  the  English  chamber.  Bnt  the  Senate  seldom 
wears  that  air  of  listless  vacuity  and  superannuated  indolence 
which  the  House  of  Lords  presents  on  all  but  a  few  nights  of 
every  session.  The  faces  are  keen  and  forcible,  as  of  men  who 
have  learned  to  know  the  world,  and  have  much  to  do  in  it ; 
the  place  seems  consecrated  to  great  affairs. 

As  might  be  expected  from  the  small  number  of  the  audi- 
ence, as  well  as  from  its  character,  discussions  in  the  Senate 
are  apt  to  be  sensible  and  practical.  Speeches  are  shorter  and 
less  fervid  than  those  made  in  the  House  of  Representatives, 
for  the  larger  an  assembly  the  more  prone  is  it  to  declamation. 
The  least  useful  debates  are  those  on  show-days,  when  a  series 
of  set  discourses  are  delivered  on  some  prominent  question. 
Each  senator  brings  down  and  tires  off:  in  the  air,  a  carefidly- 
prepared  oration,  which  may  have  little  bearing  on  what  has 
gone  before.  In  fact  the  speeches  are  made  not  to  convince 
the  assembly,  —  no  one  dreams  of  that,  —  but  to  keep  a  man's 
opinions  before  the  public  and  sustain  his  fame.  The  ques- 
tion at  issue  is  sure  to  have  been  already  settled,  either  in 
a  committee  or  in  a  "  caucus "  of  the  party  which  com- 
mands the  majority,  so  that  these  long  and  sonorous  harangues 
are  mere  rhetorical  thunder  addressed  to  the  nation  out- 
side. 

The  Senate  now  contains  many  men  of  great  wealth.  Some, 
an  increasing  number,  are  senators  because  they  are  rich ;  a 
few  are  rich  because  they  are  senators ;  while  in  the  remaining 
cases  the  same  talents  which  have  won  success  in  law  or  com- 
merce have  brought  their  possessor  to  the  top  in  politics  also. 
The  great  majority  are  or  have  been  lawyers ;  some  regularly 
practise  before  the  Supreme  Court.  Complaints  are  occasion- 
ally levelled  against  the  aristocratic  tendencies  which  wealth 
is  supposed  to  have  bred,  and  sarcastic  references  are  made  to 
the  sumptuous  residences  which  senators  have  built  on  the 
new  avenues  of  Washington.  While  admitting  that  there  is 
more  sympathy  for  the  capitalist  class  among  these  rich  men 
than  there  would  be  in  a  Senate  of  poor  men,  I  must  add  that 
the  Senate  is  far  from  being  a  class  body  like  the  upper  houses 
of  England  or  Prussia  or  Spain  or  Denmark.  It  is  substan- 
tially representative,  by  its  composition  as  well  as  by  legal 
delegation,  of   all  parts  of  American  society;    it   is   far   too 


120  THE   NATIONAL  GOVERNMENT 


dependent,  and  far  too  sensible  that  it  is  dependent,  upon 
public  opinion,  to  dream  of  legislating  in  the  interest  of  the 
rich.  The  senators,  however,  indulge  some  social  pretensions. 
They  are  the  nearest  approach  to  an  official  aristocracy  that 
has  yet  been  seen  in  America.  They  and  their  wives  are 
allowed  precedence  at  private  entertainments,  as  well  as  on 
public  occasions,  over  members  of  the  House,  and  of  course 
over  private  citizens.  Jefferson  might  turn  in  his  grave  if  he 
knew  of  such  an  attempt  to  introduce  European  distinctions  of 
rank  into  his  democracy ;  yet  as  the  office  is  temporary,  and 
the  rank  vanishes  with  the  office,  these  pretensions  are  harm- 
less; it  is  only  the  universal  social  equality  of  the  country 
that  makes  them  noteworthy.  Apart  from  such  petty  advan- 
tages, the  position  of  a  senator,  who  can  count  on  re-election, 
is  the  most  desirable  in  the  political  world  of  America.  It 
gives  as  much  power  and  influence  as  a  man  need  desire.  It 
secures  for  him  the  ear  of  the  public.  It  is  more  permanent 
than  the  presidency  or  a  cabinet  office,  requires  less  labour, 
involves  less  vexation,  though  still  great  vexation,  by  importu- 
nate office-seekers. 

European  writers  on  America  have  been  too  much  inclined 
to  idealize  the  Senate.  Admiring  its  structure  and  function, 
they  have  assumed  that  the  actors  must  be  worthy  of  their 
parts.  They  have  been  encouraged  in  this  tendency  by  the 
language  of  many  Americans.  As  the  Romans  were  never 
tired  of  repeating  that  the  ambassador  of  Pyrrhus  had  called 
the  Roman  senate  an  assembly  of  kings,  so  Americans  of  re- 
finement, who  are  ashamed  of  the  turbulent  House  of  Repre- 
sentatives, have  been  wont  to  talk  of  the  Senate  as  a  sort  of 
Olympian  dwelling-place  of  statesmen  and  sages.  It  is  nothing 
of  the  kind.  It  is  a  company  of  shrewd  and  vigorous  men  who 
have  fought  their  way  to  the  front  by  the  ordinary  methods  of 
American  politics,  and  on  many  of  whom  the  battle  has  left  its 
stains.  There  are  abundant  opportunities  for  intrigue  in  the 
Senate,  because  its  most  important  business  is  done  in  the 
secrecy  of  committee  rooms  or  of  executive  session ;  and  many 
senators  are  intriguers.  There  are  opportunities  for  misusing 
senatorial  powers.  Scandals  have  sometimes  arisen  from  the 
practice  of  employing  as  counsel  before  the  Supreme  Court, 
senators  whose  influence  has  contributed  to  the  appointment 


CHAi>.  xii        SENATE :    WORKIXG   AND   INFLUENCE  121 

or  confirmation  of  the  judges.^  Tliere  are  opportunities  for 
corruption  and  blackmailing,  of  which  unscrupulous  men  are 
well  known  to  take  advantage.  Such  men  are  fortunately  few ; 
but  considering  how  demoralized  are  the  legislatures  of  a  few 
States,  their  presence  must  be  looked  for ;  and  the  rest  of  the 
Senate,  however  it  may  blush  for  them,  is  obliged  to  work  with 
them  and  to  treat  them  as  equals.  The  contagion  of  political 
vice  is  nowhere  so  swiftly  potent  as  in  legislative  bodies,  be- 
cause you  cannot  taboo  a  man  who  has  got  a  vote.  You  may 
loathe  him  personally,  but  he  is  the  people's  choice.  He  has 
a  right  to  share  in  the  government  of  the  country ;  you  are 
grateful  to  him  when  he  saves  you  on  a  critical  division ;  you 
discover  that  "he  is  not  such  a  bad  fellow  when  one  knows 
him  " ;  people  remark  that  he  gives  good  dinners,  or  has  an 
agreeable  wife ;  and  so  it  goes  on  till  falsehood  and  knavery 
are  covered  under  the  cloak  of  party  loyalty. 

As  respects  ability,  the  Senate  cannot  be  profitably  compared 
with  the  English  House  of  Lords,  because  that  assembly  con- 
sists of  some  fifteen  eminent  and  as  many  ordinary  men  attend- 
ing regularly,  with  a  multitude  of  undistinguished  persons  who 
rarely  appear,  and  take  no  share  in  the  deliberations.  Setting 
the  Senate  beside  the  House  of  Commons,  the  average  natural 
capacity  of  its  eighty -eight  members  is  not  above  that  of  the 
eighty-eight  best  men  in  the  English  House.  There  is  more 
variety  of  talent  in  the  latter,  and  a  greater  breadth  of  culture. 
On  the  other  hand,  the  Senate  excels  in  legal  knowledge  as  well 
as  in  practical  shrewdness.  The  House  of  Commons  contains 
more  men  who  could  give  a  good  address  on  a  literary  or  histor- 
ical subject ;  the  Senate,  together  with  some  eminent  lawyers, 
has  more  who  could  either  deliver  a  rousing  popular  harangue 
or  manage  the  business  of  a  great  trading  company,  these  being 
the  forms  of  capacity  commonest  among  congressional  poli- 
ticians.   An  acute  American  observer  says  (writing  in  1885): 

"  The  Senate  is  just  what  the  mode  of  its  election  and  the  conditions  of 
public  life  in  this  country  make  it.  Its  members  are  chosen  from  the  ranks 
of  active  politicians,  in  accordance  with  a  law  of  natural  selection  to  which 

1  In  1886,  a  bill  was  brought  in  forbidding  members  of  either  House  of  Con- 
gress to  appear  in  the  Federal  courts  as  counsel  for  any  railroad  company  or 
other  corporation  which  might,  in  respect  of  its  having  received  land  grants, 
be  affected  by  Federal  legislation. 


122  THE   NATIONAL   GOVERNMENT  part  i 

the  State  legislatures  are  commonly  obedieut ;  and  it  is  probable  that  it 
contains,  consequently,  the  best  men  that  our  system  calls  into  politics. 
If  these  best  men  are  not  good,  it  is  because  our  system  of  government 
fails  to  attract  better  men  by  its  prizes,  not  because  the  country  affords  or 
coixld  afford  no  finer  material.  The  Senate  is  in  fact,  of  course,  nothing 
more  than  a  part,  though  a  considerable  part,  of  the  public  service  ;  and 
if  the  general  conditions  of  that  service  be  such  as  to  starve  statesmen  and 
foster  demagogues,  the  Senate  itself  will  be  full  of  the  latter  kind,  simply 
because  there  are  no  others  available."  ^ 

This  judgment  is  severe,  but  not  unjust.  Whether  the  sena- 
tors of  to-day  are  inferior  in  ability  and  integrity  to  those 
of  fifty,  thirty,  twenty  years  ago,  is  not  easy  to  determine. 
But  it  must  be  admitted,  however  regretfully,  that  they  are 
less  independent,  less  respected  by  the  people,  less  influential 
with  the  people,  than  were  their  predecessors ;  and  their 
wealth,  which  has  made  them  fear  the  reproach  of  wanting 
popular  sympathies,  may  count  for  something  in  this  decline. 

The  place  which  the  Senate  holds  in  the  constitutional  sys- 
tem of  America  cannot  be  fully  appreciated  till  the  remaining 
parts  of  that  system  have  been  described.  This  much,  how- 
ever, may  be  claimed  for  it,  that  it  has  been  and  is  still,  though 
perhaps  less  than  formerly,  a  steadying  and  moderating  power. 
One  cannot  say  in  the  language  of  European  politics  that  it 
has  represented  aristocratic  principles,  or  anti-popular  princi- 
ples, or  even  conservative  principles.  Each  of  the  great  his- 
toric parties  has  in  turn  commanded  a  majority  in  it,  and  the 
difference  between  their  strength  has  during  the  last  decade 
been  but  slight.  On  none  of  the  great  issues  that  have 
divided  the  nation  has  the  Senate  been,  for  any  long  period, 
decidedly  opposed  to  the  other  House  of  Congress.  It  showed 
no  more  capacity  than  the  House  for  grappling  with  the  prob- 
lems of  slavery  extension.  It  was  scarcely  less  ready  than  the 
House  to  strain  the  Constitution  by  supporting  Lincoln  in  the 
exercise  of  the  so-called  war  powers,  or  subsequently  by  cut- 
ting down  presidential  authority  in  the  struggle  between  Con- 
gress and  Andrew  Johnson,  though  it  refused  to  convict  him 
when  impeached  by  the  House.  All  the  fluctuations  of  public 
opinion  tell  upon  it,  nor  does  it  venture,  any  more  than  the 
House,  to  confront  a  popular  impulse,  because  it  is,  equally 
with  the  House,  subject  to  the  control  of  the  great  parties, 
1  Woodrow  Wilson,  Congressional  Government,  p.  194. 


CHAP.  XII         SENATE  :    WOKKING   AND   INFLUENCE  123 

which  seek  to  use  while  they  obey  the  dominant  sentiment  of 
the  hour. 

But  the  fluctuations  of  opinion  tell  on  it  less  energetically 
than  on  the  House  of  Eepresentatives.  They  reach  it  more 
slowly  and  gradually,  owing  to  the  system  which  renews  it  by 
one-third  every  second  year,  so  that  it  sometimes  happens  that 
before  the  tide  has  risen  to  the  top  of  the  flood  in  the  Senate  it 
has  already  begun  to  ebb  in  the  country.  The  Senate  has  been  a 
stouter  bulwark  against  agitation,  not  merely  because  a  majority 
of  the  senators  have  always  four  years  of  membership  before 
them,  within  which  period  public  feeling  may  change,  but  also 
because  the  senators  have  been  individually  stronger  men  than 
the  representatives.  They  are  less  democratic,  not  in  opinion, 
but  in  temper,  because  they  are  more  self-confident,  because 
they  have  more  to  lose,  because  experience  has  taught  them 
how  fleeting  a  thing  popular  sentiment  is,  and  how  useful 
a  thing  continuity  in  policy  is.  The  Senate  has  therefore 
usually  kept  its  head  better  than  the  House  of  Eepresentatives. 
It  has  expressed  more  adequately  the  judgment,  as  contrasted 
with  the  emotion,  of  the  nation.  In  this  sense  it  does  consti- 
tute a  "  check  and  balance "  in  the  Federal  government.  Of 
the  three  great  functions  which  the  Fathers  of  the  Constitution 
meant  it  to  perform,  the  first,  that  of  securing  the  rights  of 
the  smaller  States,  is  no  longer  important ;  while  the  second, 
that  of  advising  or  controlling  the  Executive  in  appointments 
as  well  as  in  treaties,  has  given  rise  to  evils  almost  commensu- 
rate with  its  benefits.  But  the  third  duty  is  still  discharged, 
for  "the  propensity  of  a  single  and  numerous  assembly  to  yield 
to  the  impulse  of  sudden  and  violent  passions"  is  frequently, 
though  not  invariably,  restrained. 


CHAPTER  XIII 

THE    HOUSE    OF    REPRESENTATIVES 

The  House  of  Representatives,  usually  called  for  shortness 
the  House,  represents  the  natioii  on  the  basis  of  population,  as 
the  Senate  represents  the  States. 

But  even  in  the  composition  of  the  House  the  States  play  an 
important  part.  The  Constitution  provides  ^  that  "  representa- 
tives and  direct  taxes  shall  be  ajDportioned  among  the  several 
States  according  to  their  respective  numbers,"  and  under  this 
provision  Congress  allots  so  many  members  of  the  House  to 
each  State  in  proportion  to  its  population  at  the  last  preceding 
decennial  census,  leaving  the  State  to  determine  the  districts 
within  its  own  area  for  and  by  which  the  members  shall  be 
chosen.  These  districts  are  now  equal  or  nearly  equal  in  size ; 
but  in  laying  them  out  there  is  ample  scope  for  the  process 
called    "gerrymandering,"^  which  the  dominating  party  in  a 

1  Constitution,  Art.  1.  §  2,  par.  3;  cf.  Amendment  xiv.  §  2. 

"  So  called  from  Elbridge  Gerry,  a  leading  Democratic  politician  in  Massa- 
chusetts (a  member  of  the  Constitutional  Convention  of  1787,  and  in  1812 
elected  Vice-President  of  the  United  States),  who  when  Massachusetts  was 
being  re-districted  contrived  a  scheme  which  gave  one  of  the  districts  a  shape 
like  that  of  a  lizard.  Stuart,  the  well-known  artist,  entering  the  room  of  an 
editor  who  had  a  map  of  the  new  districts  hanging  on  the  wall  over  his  desk 
observed,  "  Why,  this  district  looks  like  a  salamander,"  and  put  in  the  claws 
and  eyes  of  the  creature  with  his  pencil.  "Say  rather  a  Gerrymander," 
replied  the  editor;  and  the  name  stuck.  The  aim  of  gerrymandering,  of 
course,  is  so  to  lay  out  the  one-membered  districts  as  to  secure  in  the  greatest 
possible  number  of  them  a  majority  for  the  party  which  conducts  the  opera- 
tion. This  is  done  sometimes  by  tlirowing  the  greatest  jiossible  number  of 
hostile  voters  into  a  district  which  is  anyhow  certain  to  be  hostile,  sometimes 
by  adding  to  a  district  where  parties  are  equally  divided  some  place  in  which 
the  majority  of  friendly  voters  is  sufRcient  to  turn  the  scale.  There  is  a 
district  in  Mississippi  (the  so-called  Shoe  String  district)  500  miles  long  by  40 
broad,  and  another  in  Pennsylvania  resembling  a  duml)-bell.  South  Carolina 
furnishes  some  beautiful  recent  examples.  And  in  Missouri  a  district  has 
been  contrived  longer,  if  measured  along  its  windings,  than  the  State  itself, 
into  which  as  large  a  number  as  possible  of  the  negro  voters  have  been  thrown. 
124 


CHAP.  XIII        THE    HOUSE   OF   REPRESENTATIVES  125 

State  rarely  fails  to  apply  for  its  own  advantage.  Where  a 
State  legislature  has  failed  to  redistribute  the  State  into  con- 
gressional districts,  after  the  State  has  received  an  increase  of 
representatives,  the  additional  member  or  members  are  elected 
by  the  voters  of  the  whole  State  on  a  general  ticket,  and  are 
called  "  representatives  at  large."  Kecently  one  State  (Maine) 
elected  all  its  representatives  on  this  plan,  while  another  (Kan- 
sas) elected  three  by  districts  and  four  by  general  ticket.  Each 
district,  of  course,  lies  wholly  within  the  limits  of  one  State. 
When  a  seat  becomes  vacant  the  governor  of  the  State  issues  a 
writ  for  a  new  election,  and  when  a  member  desires  to  resign 
his  seat  he  does  so  by  letter  to  the  governor. 

The  original  House  which  met  in  1789  contained  only  sixty- 
five  members,  the  idea  being  that  there  should  be  one  member 
for  every  30,000  persons.  As  population  grcAv  and  new  States 
were  added,  the  number  of  members  was  increased.  Originally 
Congress  fixed  the  ratio  of  members  to  population,  and  the 
House  accordingly  grew;  but  latterly,  fearing  a  too  rapid 
increase,  it  has  fixed  the  number  of  members  with  no  regard 
for  any  precise  ratio  of  members  to  population.  At  present 
(September  1892)  the  total  number  is  332,  but  under  a  statute 
of  1891  it  will  in  the  next  Congress  rise  to  356,  being,  according 
to  the  census  of  1890,  one  member  to  about  174,000  souls.  Six 
States,  Delaware,  Idaho,  Montana,  Nevada,  N.  Dakota,  Wyo- 
ming, have  under  this  Act  one  representative  each ;  eight  have 
two  each ;  while  New  York  has  thirty-four,  and  Pennsylvania 
thirty.  Besides  these  full  members  there  are  also  four  Terri- 
torial delegates,  one  from  each  of  the  Territories,  regions  in 
the  West  enjoying  a  species  of  self-government,  but  not  yet 
formed  into  States.  These  delegates  sit  and  speak,  but  have  no 
right  to  vote,  being  unrecognized  by  the  Constitution.  They 
are,  in  fact,  merely  persons  whom  the  House  under  a  statute 
admits  to  its  floor  and  permits  to  address  it. 

The  quorum  of  the  House,  as  of  the  Senate,  is  one-half  of  the 
total  number.  Till  the  Fifty-first  Congress  the  custom  had  been 
to  treat  as  absent  all  members  w^ho  did  not  answer  to  their 
names  on  a  roll-call,  but  in  1890,  one  party  persistently  refusing 
to  answer  in  order  to  prevent  the  transaction  of  business,  the 
Speaker  asserted  the  right  of  counting  for  the  purposes  of  a 
quorum  all  whom  he  saw  physically  present.     A  rule  was  then 


126  THE   NATIONAL   GOVERNMENT  part  i 

passed  directing  that  he  should  so  count,  but  in  the  Fifty- 
second  Congress  this  rule  was  dropped. 

The  electoral  franchise  on  which  the  House  is  elected  is  for 
each  State  the  same  as  that  by  which  the  members  of  the  more 
numerous  branch  of  the  State  legislature  are  chosen.  Originally 
franchises  varied  much  in  different  States  ;  and  this  was  a  prin- 
cipal reason  why  the  Convention  of  1787  left  the  matter  to  the 
States  to  settle  :  now  what  is  practically  manhood  suffrage  pre- 
vails everywhere.  A  State,  however,  has  a  right  of  limiting 
the  suffrage  as  it  pleases,  and  many  States  do  exclude  persons 
convicted  of  crime,  paujiers,  illiterates,  etc.  By  the  fifteenth 
amendment  to  the  Constitution  (passed  in  1870)  "the  right  of 
citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  any  State  on  account  of  race,  colour,  or  previous 
condition  of  servitude,"  while  by  the  fourteenth  amendment 
(passed  in  1868)  "the  basis  of  representation  in  any  State  is 
reduced  in  respect  of  any  male  citizens  excluded  from  the  suf- 
frage, save  for  participation  in  rebellion  or  other  crimes."  Each 
State  has  therefore  a  strong  motive  for  keeping  its  suffrage 
wide,  but  the  fact  remains  that  the  franchise  by  which  the 
Federal  legislature  is  chosen  may  differ  vastly,  and  does  in 
some  small  points  actually  differ  in  different  parts  of  the 
Union.^ 

Members  are  elected  for  two  years,  and  the  election  always 
takes  place  in  the  even  years,  1892,  1894,  and  so  forth.  Thus 
the  election  of  evfery  second  Congress  coincides  with  that  of  a 
President;  and  admirers  of  the  Constitution  find  in  this  ar- 
rangement another  of  their  favourite  "  checks,"  because  while 
it  gives  the  incoming  President  a  Congress  presumably,  though 
by  no  means  necessarily,  of  the  same  political  complexion  as 
his  own,  it  enables  the  people  within  two  years  to  express 
their  approval  or  disapproval  of  his  conduct  by  sending  up 
another  House  of  Eepresentatives  which  may  support  or  op- 
pose the  policy  he  has  followed.  The  House  does  not  in  the 
regular  course  of  things  meet  until  a  year  has  elapsed  from 
the  time  when  it  has  been  elected,  though  the  President  may 
convoke  it  sooner,  i.e.  a  House  elected  in  November  1892  will 

1  Rhode  Island  retained  till  1888  a  small  property  qualification  for  electors, 
and  in  some  States  payment  of  a  poll  tax  is  made  a  condition  to  the  exercise 
of  electoral  rights.     See  Chapter  XL.  on  State  Legislatures. 


CHAP.  XIII        THE    HOUSE    OF   REPKESENTATIVES  127 

not  meet  till  December  1893,  unless  the  President  summons  it 
in  ''extraordinary  session"  some  time  after  March  1893,  when 
the  previous  House  expires.  This  summons  has  been  issued 
ten  times  only  since  1789 ;  and  has  so  often  brought  ill  luck 
to  the  summoning  President  that  a  sort  of  superstition  against 
it  has  now  grown  up.^  The  question  is  often  mooted  whether 
a  new  Congress  ought  not  by  law  to  meet  within  six  months 
after  its  election,  for  there  are  inconveniences  in  keeping  an 
elected  House  unorganized  and  Speakerless  for  a  twelvemonth. 
But  the  country  is  not  so  fond  of  Congress  as  to  desire  more 
of  it.  It  is  a  singular  result  of  the  present  arrangement  that 
the  old  House  continues  to  sit  for  nearly  four  months  after  the 
members  of  the  new  House  have  been  elected,  and  that  a  meas- 
ure may  still  be  pressed  in  the  expiring  Congress,  against  which 
the  country  has  virtually  pronounced  at  the  general  elections 
already  held  for  its  successor.  In  the  Fifty-first  Congress 
the  House  voted  more  than  500  millions  of  dollars  in  its  appro- 
priation bills  after  a  new  Congress  had  been  elected,  and  when 
therefore  it  had  in  strictness  no  longer  any  constituents. 

The  expense  of  an  election  varies  greatly  from  district  to 
district.  Sometimes,  especially  in  great  cities  where  illegiti- 
mate expenditure  is  more  frequent  and  less  detectible  than  in 
rural  districts,  it  rises  to  a  sum  of  $10,000  (£2000)  or  more : 
sometimes  it  is  trifling.-  No  estimate  of  the  average  can  be 
formed,  because  no  returns  of  congressional  election  expenses 
are  required  by  law ;  but  as  a  rule  a  seat  costs  less  than  one 
for  a  county  division  does  in  England.^  A  candidate,  unless 
very  wealthy,  is  not  expected  to  pay  the  whole  expense  out  of 
his  own  pocket,  but  is  aided  often  by  the  local  contributions 
of  his  friends,  sometimes  by  a  subvention  from  the  election 
funds  of  the  party  in  the  State.  All  the  official  expenses,  such 
as  for  clerks,  polling  booths,  etc.,  are  paid  by  the  public.  Al- 
though bribery  is  not   rare,  comparatively  few  elections  are 

1  This  ill  luck  is  supposed  (says  Mr.  Blaine  in  his  2\i:eut!/  Years  in  Con- 
gress) to  attach  especially  to  May  sessions,  which  reminds  one  of  the  supersti- 
tion against  May  marriages  mentioned  hy  John  Knox  apropos  of  the  marriage 
of  Mary  Queen  of  Scots  and  Darnley. 

2  As' to  bribery,  see  Vol.  II.  Chap.  LXVII. 

3  In  England  the  fixing  a  maximum,  proportioned  to  the  number  of  electors, 
has  greatly  reduced  the  cost  of  elections.  The  average  expenditure,  all  kinds 
of  expense  included,  seems,  in  county  constituencies,  to  be  from  £1100  to  £1200, 
and  in  boroughs  from  £400  to  £500. 


128  THE   NATIONAL   GOVEliNMENT  pakt  i 

impeached,  for  the  difficulty  of  proof  is  increased  by  the  cir- 
cumstance that  the  House,  which  is  the  investigating  and 
deciding  authority,  does  not  meet  till  a  year  after  the  election. 
As  a  member  is  elected  for  two  years  only,  and  the  investiga- 
tion would  probably  drag  on  during  the  whole  of  the  first 
session,  it  is  scarcely  worth  while  to  dispute  the  return  for 
the  sake  of  turning  him  out  for  the  second  session.^  In  some 
States,  drinking  places  are  closed  on  the  election  day. 

Among  the  members  of  the  House  there  are  few  young  men, 
and  still  fewer  old  men.  The  immense  majority  are  between 
forty  and  sixty.  Lawyers  abound,  including  in  that  term 
both  those  who  in  Great  Britain  are  called  barristers  or  ad- 
vocates, and  those  who  are  called  attorneys,  there  being  in 
America  no  distinction  between  these  two  branches  of  the 
profession.  An  analysis  of  the  House  in  the  fiftieth  Congress 
showed  that  two  hundred  and  three  members,  or  nearly  two- 
thirds  of  the  whole  number,  had  been  trained  or  had  practised 
as  lawyers,  while  in  the  fifty-second  the  number  was  two  hun- 
dred. Of  course  many  of  these  had  practically  dropped  law 
as  a  business,  and  given  themselves  wholly  to  politics.  Next 
in  number  come  the  men  engaged  in  manufactures  or  com- 
merce, in  agriculture,  or  banking,  or  journalism,  but  no  one  of 
these  occupations  counted  as  many  as  forty  members.^  Min- 
isters of  religion  are  very  rare ;  there  were,  however,  two  in 
the  fifty-second  Congress.  No  military  or  naval  officer,  and 
no  person  in  the  civil  service  of  the  United  States,  can  sit. 
Scarcely  any  of  the  great  railway  men  go  into  Congress,  a  fact 
of  much  significance  when  one  considers  that  they  are  really 
the  most  powerful  people  in  the  country ;  and  of  the  numerous 
lawyer  members  very  few  are  leaders  of  the  bar  in  their  re- 
spective States.  The  reason  is  the  same  in  both  cases.  Eesi- 
dence  in  Washington  makes  practice  at  the  bar  of  any  of  the 
great  cities  impossible,  and  men  in  lucrative  practice  would 

1  It  has  been  recently  ijroposed  to  transfer  to  a  j  udicial  tribunal  the  trial  of 
election  cases,  which  are  now  usually  decided  on  party  lines. 

2  In  the  fifty-second  Congress  the  number  of  persons  stating  themselves  to 
be  engaged  in  commerce  was  49,  in  agriculture  o9.  In  the  forty-eighth  Con- 
gress there  were  205  lawyers.  I  take  these  numbers  from  the  Congressional 
Directory,  which  I  have  carefully  analyzed,  but  as  some  members  do  not  state 
their  occupations,  the  analysis  is  not  quite  complete,  and  there  are  probably 
more  lawyers  than  the  number  I  have  given. 


CHAP.  XIII        THE   HOUSE   OF   REPRESENTATIVES  129 

not  generally  sacrifice  their  profession  in  order  to  sit  in  the 
House,  while  railway  managers  or  financiers  are  too  much  en- 
grossed by  their  business  to  be  able  to  undertake  the  duties  of 
a  member.  The  absence  of  railway  men  by  no  means  implies 
the  absence  of  railway  influence,  for  it  is  as  easy  for  a  company 
to  influence  legislation  from  without  Congress  as  from  within. 

Most  members,  including  nearly  all  western  men,  have  re- 
ceived their  early  education  in  the  common  schools,  but  about 
one  half  of  the  whole  number  have  also  graduated  in  a  uni- 
versity or  college.  This  does  not  necessarily  mean  what  it 
would  mean  in  Europe,  for  some  of  the  smaller  colleges  are  no 
better  than  English  grammar  schools  and  not  as  good  as  Ger- 
man gymnasia.  It  is  noticeable  that  in  the  accounts  of  their 
career  which  members  prepare  for  the  pages  of  the  Congres- 
sional Directory,  they  usually  dwell  upon  the  fact  of  their 
graduation,  or  state  that  they  have  "received  an  academic 
education."  ^  A  good  many,  but  apparently  not  the  majority, 
have  served  in  the  legislature  of  their  own  State.  Compara- 
tively few  are  wealthy,  and  few  are  very  poor,  while  scarcely 
any  were  at  the  time  of  their  election  working  men.  Of  course 
no  one  could  be'  a  working  man  while  he  sits,  for  he  would 
have  no  time  to  spare  for  his  trade,  and  the  salary  Avould  more 
than  meet  his  wants.  Nothing  prevents  an  artisan  from  being 
returned  to  Congress,  but  there  seems  little  disposition  among 
the  working  classes  to  send  one  of  themselves. 

A  member  of  the  Hovise  enjoys  the  title  of  Honourable, 
which  is  given  to  liim  not  merely  within  the  House  (as  in 
England),  but  in  the  world  at  large,  as  for  instance  in  the 
addresses  of  his  letters.  As  he  shares  it  with  members  of 
State  senates,  all  the  higher  oflicials,  both  Federal  and  State, 
and  judges,  the  distinction  is  not  deemed  a  high  one. 

The  House  has  no  share  in  the  executive  functions  of  the 
Senate,  nothing  to  do  with  confirming  appointments  or  approv- 
ing treaties.  On  the  other  hand,  it  has  the  exclusive  right  of 
initiating  revenue  bills  and  of  impeaching  officials,  features 
borrowed,  through  the  State  Constitutions,  from  the  English 

1  In  the  Congressional  Directory  for  the  fiftieth  Congress  I  find  209  mem- 
hers  claiming  to  have  received  a  "collegiate"  or  "academic"  education,  84 
owning  to  an  elementary  or  common  school  education,  and  the  remainder 
silent  on  the  subject.  In  the  fifty-second  the  numbers  were  188  collegiate  and 
68  elementary. 

VOL.  I  K 


130  THE   NATIONAL   GOVERNMENT 


House  of  Commons,  and  of  clioosing  a  President  in  case  there 
should  be  no  absolute  majority  of  presidential  electors  for  any 
one  candidate.  This  very  important  power  it  exercised  in 
1801  and  1825.^ 

Setting  extraordinary  sessions  aside,  every  Congress  has  two 
sessions,  distinguished  as  the  First  or  Long  and  the  Second  or 
Short.  The  long  session  begins  in  the  fall  of  the  year  after 
the  election  of  a  Congress,  and  continues,  with  a  recess  at 
Christmas,  till  the  July  or  August  following.  The  short 
session  begins  in  the  December  after  the  July  adjournment, 
and  lasts  till  the  4th  of  March  following.  The  whole  working 
life  of  a  House  is  thus  from  ten  to  twelve  months.  Bills  do 
not,  as  in  the  English  Parliament,  expire  at  the  end  of  each 
session  ;  they  run  on  from  the  long  session  to  the  short  one. 
All  however  that  have  not  been  passed  when  the  fatal  4th 
March  arrives  perish  forthwith,  for  the  session  being  fixed  by 
statute  cannot  be  extended  at  pleasure.^  There  is  conse- 
quently a  terrible  scramble  to  get  business  pushed  through  in 
the  last  week  or  two  of  a  Congress. 

The  House  usually  meets  at  noon,  aiid  sits  till  four  or  six 
o'clock,  though  towards  the  close  of  a  session  these  hours  are 
lengthened.  Occasionally  when  obstruction  occurs,  or  when  at 
the  very  end  of  a  session  messages  are  going  backwards  and 
forwards  between  the  House,  the  Senate,  and  the  President,  it 
sits  all  night  long. 

The  usages  and  rules  of  procedure  of  the  House,  which  differ 
in  many  respects  from  those  of  the  Senate,  are  too  numerous  to 
be  described  here.  I  will  advert  only  to  a  few  points  of  special 
interest,  choosing  those  which  illustrate  American  political 
ideas  or  bring  out  the  points  of  likeness  and  unlikeness  be- 
tween Congress  and  the  English  Parliament. 

An  oath  or  affirmation  of  fidelity  to  the  Constitution  of  the 
United  States  is  (as  prescribed  by  the  Constitution)  taken 
by  all  members ;  ^  also  by  the  clerk,  the  sergeant-at-arms,  the 
door-keeper,  and  the  post-master. 

1  See  above,  Chapter  V. 

2  Senate  bills  also  expire  at  the  end  of  a  Congress. 

A  proposal  was  recently  made,  bnt  has  not  yet  been  adopted,  to  extend  the 
session  till  April  and  have  the  President  inangurated  then. 

2  The  oath  is  administered  by  the  Speaker,  and  in  the  form  followine;:  "  I 
do  solemnly  swear  (or  affirm)  that  I  will  support  the  Constitution  of  the 


CHAP.  XIII        THE   HOUSE   OF   EEPRESENTATIVES  131 

The  sergeant-at-arms  is  the  treasurer  of  the  House,  and  pays 
to  each  member  his  salary  and  mileage  (travelling  expenses). 
He  has  the  custody  of  the  mace,  and  the  duty  of  keeping  order, 
which  in  extreme  cases  he  performs  by  carrying  the  mace  into 
a  throng  of  disorderly  members.  This  symbol  of  authority, 
which  (as  in  the  House  of  Commons)  is  moved  from  its  place 
when  the  House  goes  into  committee,  consists  of  the  Roman 
fasces,  in  ebony,  bound  with  silver  bands  in  the  middle  and  at 
the  ends,  each  rod  ending  in  a  spear  head,  at  the  other  end  a 
globe  of  silver,  and  on  the  globe  a  silver  eagle  ready  for  flight. 
English  precedent  suggests  the  mace,  but  as  it  could  not  be 
surmounted  by  a  crown,  Rome  has  prescribed  its  design. 

The  proceedings  each  day  begin  with  prayers,  which  are  con- 
ducted by  a  chaplain  who  is  appointed  by  the  House,  not  (as 
in  England)  by  the  Speaker,  and  who  may,  of  course,  be 
selected  from  any  religious  denomination.  Lots  are  drawn 
for  seats  at  the  beginning  of  the  session,  each  member  select- 
ing the  place  he  pleases  .according  as  his  turn  arrives.  Al- 
though the  Democrats  are  to  the  Speaker's  right  hand,  mem- 
bers cannot,  owing  to  the  arrangement  of  the  chairs,  sit  in 
masses  palpably'  divided  according  to  party,  a  circumstance 
which  deprives  invective  of  much  of  its  dramatic  effect.  One 
cannot,  as  in  England,  point  the  finger  of  scorn  at  "  hon.  gen- 
tlemen opposite."  Every  member  is  required  to  remain  un- 
covered in  the  House. 

A  member  addresses  the  Speaker  and  tlie  Speaker  only,  and 
refers  to  another  member  not  by  name  but  as  the  "  gentleman 
from  Pennsylvania,"  or  as  the  case  may  be,  without  any  par- 
ticular indication  of  the  district  which  the  person  referred  to 
represents.  As  there  are  twenty-eight  gentlemen  from  Penn- 
sylvania, and  the  descriptives  used  in  the  English  House  of 
Commons  (learned,  gallant,  right  honourable)  are  not  in  use, 
facilities  for  distinguishing  the  member  intended  are  not  per- 
fect.    A  member  usually  speaks  from  his  seat,  but  may  speak 

United  States  against  all  enemies,  foreign  and  domestic ;  that  I  will  bear  true 
faith  and  allegiance  to  the  same ;  that  I  take  this  obligation  freely  without 
any  mental  reservation  or  purpose  of  evasion,  and  that  I  will  well  and  faith- 
fully discharge  the  duties  of  the  office  on  which  I  am  about  to  enter,  so  help 
me  God."  "Allegiance"  to  a  legal  instrument  would  have  seemed  an  odd 
expression  to  those  ages  in  which  the  notion  of  allegiance  arose ;  yet  it  fairly 
conveys  the  idea  that  obedience  is  due  to  the  will  of  the  people,  which  has 
taken  tangible  and  permanent  shape  in  the  document  they  have  enacted. 


132  THE   NATIONAL   GOVERNMENT 


from  the  clerk's  desk  or  from  a  spot  close  to  the  Speaker's 
chair.  A  rule  (often  disregarded)  forbids  any  one  to  pass  be- 
tween the  Speaker  and  the  member  speaking,  a  curious  bit  of 
adherence  to  English  usage. 

Divisions  were  originally  (rule  of  17th  April  1789)  taken 
by  going  to  the  right  and  left  of  the  chair,  according  to  the  old 
practice  of  the  English  House  of  Commons.^  This  having  been 
found  inconvenient,  a  resolution  of  9th  June  1789  established 
the  present  practice,  whereby  members  rise  in  their  seats  and 
are  counted  in  the  first  instance  by  the  Speaker,  but  if  he  is  in 
doubt,  or  if  a  count  be  required  by  one-fifth  of  those  present 
(which  cannot  be  less  than  one-tenth  of  the  whole  House), 
then  by  two  tellers  named  by  the  Speaker,  between  whom,  as 
they  stand  in  the  middle  gangway,  members  pass.  When  a 
call  of  yeas  and  nays  is  so  demanded,  the  clerk  calls  the  full 
roll  of  the  House,  and  each  member  answers  aye  or  no  to  his 
name,  or  says  "no  vote.'"  When  the  Avhole  roll  has  been  called, 
it  is  called  over  a  second  time  to  let  those  vote  who  have  not 
voted  in  the  first  call.  Members  may  now  change  their  votes. 
Those  who  have  entered  the  House  after  their  names  were 
passed  on  the  second  call  cannot  vote,  but  often  take  the 
opportunity  of  rising  to  say  that  they  would,  if  then  present 
in  the  House,  have  voted  for  (or  against)  the  motion.  All 
this  is  set  forth  in  the  Congressioyial  Record,  which  also  con- 
tains a  list  of  the  members  not  voting  and  of  the  pairs. 

A  process  which  consumes  so  much  time,  for  it  sometimes 
takes  an  hour  to  call  through  the  three  hundred  and  thirty-two 
names,  is  an  obvious  and  effective  engine  of  obstruction.  It  is 
frequently  so  used,  for  it  can  be  demanded  not  only  on  ques- 
tions of  substance,  but  on  motions  to  adjourn.  This  is  a  rule 
which  the  Hovise  cannot  alter,  for  it  rests  on  an  express 
provision  of  the  Constitution,  Art.  i.  §  5. 

No  one  may  speak  more  than  once  to  the  same  question, 
unless  he  be  the  mover  of  the  motion  pending,  in  which  case 
he  is  permitted  to  reply  after  every  member  choosing  to  speak 
has  spoken.     This  rule  is  however  frequently  broken. 

1  It  was  not  until  1836  that  the  present  system  of  recording  the  names  of 
members  who  vote  by  making  them  pass  through  lobbies  was  introduced  at 
Westminster  —  a  significant  result  of  the  Reform  Act  of  18."2.  Till  then  one 
party  liad  remained  in  the  House  while  the  other  retired  into  the  lobby,  and 
only  the  numbers  were  recorded. 


I 


CHAP.  XIII        THE   HOUSE   OF   REPRESENTATIVES  133 


Speeches  are  limited  to  one  hour,  subject  to  a  power  to 
extend  this  time  by  unanimous  consent,  and  may,  in  committee 
of  the  whole  House,  be  limited  to  live  minutes.  So  far  as  I 
could  learn,  this  hour  rule  works  very  well,  and  does  not  tend 
to  bring  speeches  up  to  that  length  as  a  regular  thing.  A 
member  is  at  liberty  to  give  part  of  his  time  to  other  members, 
and  this  is  in  practice  constantly  done.  The  member  speaking 
will  say :  "  I  yield  the  floor  to  the  gentleman  from  Ohio  for 
five  mimites,"  and  so  on.  Thus  a  member  who  has  once 
secured  the  floor  has  a  large  control  of  the  debate. 

The  great  remedy  against  prolix  or  obstructive  debate  is  the 
so-called  previous  question,  which  is  moved  in  the  form,  "  Shall 
the  mam  question  be  now  put  ? "  and  when  ordered  closes 
forthwith  all  debate,  and  brings  the  House  to  a  direct  vote  on 
that  main  question.  On  the  motion  for  the  putting  of  the 
main  question  no  debate  is  allowed ;  but  it  does  not  destroy 
the  right  of  the  member  "reporting  the  measure  under  con- 
sideration" from  a  committee,  to  wind  up  the  discussion  by 
his  reply.  This  closure  of  the  debate  may  be  moved  by  any 
member  without  the  need  of  leave  from  the  Speaker,  and 
requires  only  a  bare  majority  of  those  present.  When  directed 
by  the  House  to  be  applied  in  committee,  for  it  cannot  be 
moved  after  the  House  has  gone  into  committee,  it  has  the 
effect  of  securing  five  minutes  to  the  mover  of  any  amendment, 
and  five  minutes  to  the  member  who  first  "  obtains  the  floor  " 
(gets  the  chance  of  speaking)  in  opposition  to  it,  permitting 
no  one  else  to  speak.  A  member  in  proposing  a  resolution  or 
motion  usually  asks  at  the  same  time  for  the  previous  question 
upon  it,  so  as  to  prevent  it  from  being  talked  out. 

Closure  by  previous  question,  first  established  in  1811,  is 
in  daily  use,  and  is  considered  so  essential  to  the  progress  of 
business  that  I  never  found  any  member  or  official  willing 
to  dispense  with  it.  Even  the  senators,  who  object  to  its 
introduction  into  their  own  much  smaller  chamber,  agree  that 
it  must  exist  in  a  large  body  like  the  House.  That  is  is  not 
much  abused  is  attributed  to  the  fear  of  displeasing  the  people, 
and  to  the  sentiment  within  the  House  itself  in  favour  of  full 
and  fair  discussion,  which  sometimes  induces  the  majority  to 
refuse  the  previous  question  when  demanded  by  one  of  their 
own  party,  or  on  behalf  of  a  motion  which  they  are  as  a  whole 


134  THE   NATIONAL   GOVERNMENT  part  i 

supporting.  "  No  one,"  I  was  assured,  "  who  is  bond  fide  dis- 
cussing a  subject  in  a  sensible  way,  would  be  stopped  by  the 
application  of  the  previous  question.  On  the  other  hand  we 
should  never  get  even  urgent  bills  through  without  it." 

Notwithstanding  this  powerful  engine  for  expediting  busi- 
ness, obstruction,  or,  as  it  is  called  in  America,  filibustering, 
is  by  no  means  unknown.  It  is  usually  practised  by  making 
repeated  motions  for  the  adjournment  of  a  debate,  or  for 
"taking  a  recess"  (suspending  the  sitting),  or  for  calling  the 
yeas  and  nays.  Between  one  such  motion  and  another  some 
business  must  intervene,  but  as  the  making  of  a  speech  is 
"business,"  there  is  no  difficulty  in  complying  with  this  require- 
ment. No  speaking  is  permitted  on  these  obstructive  motions, 
yet  by  them  time  may  be  wasted  for  many  continuous  hours, 
and  if  the  obstructing  minority  is  a  strong  one,  it  generally 
succeeds,  if  not  in  defeating  a  measure,  yet  in  extorting  a 
compromise.  It  must  be  remembered  that  owing  to  the  pro- 
vision of  the  Constitution  above  mentioned,  the  House  is  in 
this  matter  not  sovereign  even  over  its  own  procedure.  That 
rules  are  not  adopted,  as  they  might  be,  which  would  go 
further  to  extinguish  filibustering,  is  due  partly  to  this  provi- 
sion, partly  to  the  notion  that  it  is  prudent  to  leave  some 
means  open  by  which  a  minority  can  make  itself  disagreeable, 
and  to  the  belief  that  adequate  checks  exist  on  any  gross  abuse 
of  such  means.^  These  checks  are  two.  One  is  the  fact  that 
filibustering  usually  fails  unless  conducted  by  nearly  the  whole 
of  the  party  which  happens  to  be  in  a  minority,  and  that  so 
large  a  section  of  the  House  will  not  be  at  the  trouble  of  join- 
ing in  it  unless  upon  some  really  serious  question.  Some  few 
years  ago,  seventeen  or  eighteen  members  tried  to  obstruct 
systematically  a  measure  they  objected  to,  but  their  number 
proved  insufficient,  and  the  attempt  failed.  But  at  an  earlier 
date,  during  the  Reconstruction  troubles  which  followed  the 
war,  the  opposition  of  the  solid  Democratic  party,  then  in  a 
minority,  succeeded  in  defeating  a  bill  for  placing  five  of  the 
southern  States  under  military  government.  The  other  check 
is  found  in  the  fear  of  popular  disapproval.     If  the  nation 

1  In  1890  a  rule  was  passed  empowerino;  the  Speaker  to  refuse  to  put  any 
motion  which  he  might  deem  to  be  of  a  dilatory  nature,  but  the  Fifty-Second 
Congress  gave  this  power  only  for  one  class  of  cases. 


CHAP,  xni        THE   HOUSE   OF  REPRESENTATIVES  135 

sees  public  business  stopped  and  necessary  legislation  delayed 
by  factious  obstruction,  it  will  visit  its  displeasure  both  upon 
the  filibustering  leaders  individually,  and  on  the  whole  of  the 
party  compromised.  However  hot  party  spirit  may  be,  there 
is  always  a  margin  of  moderate  men  in  both  parties  whom  the 
unjustifiable  use  of  legally  permissible  modes  of  opposition 
will  alienate.  Since  such  men  can  make  themselves  felt  at 
the  polls  when  the  next  election  arrives,  respect  for  their 
opinion  cools  the  passion  of  congressional  politicians.  Thus 
the  general  feeling  is  that  as  the  power  of  filibustering  is  in 
extreme  cases  a  safeguard  against  abuses  of  the  system  of 
closure  by  "  previous  question,"  so  the  good  sense  of  the  com- 
munity is  in  its  turn  a  safeguard  against  abuses  of  the  oppor- 
tunities which  the  rules  still  leave  open.  One  ex-Speaker, 
who  had  had  large  experience  in  leading  both  a  majority  and 
a  minority  of  the  House,  observed  to  me  that  he  thought  the 
rules,  taken  all  in  all,  as  near  perfection  as  any  rules  could  be. 
This  savours  of  official  optimism.  We  all  know  the  attach- 
ment which  those  who  have  grown  old  in  working  a  system 
show  to  its  faults  as  well  as  to  its  merits.  Still,  true  is  it 
that  congressmen  generally  complain  less  of  the  procedure 
under  which  they  live,  and  which  seems  to  an  English 
observer  tyrannical,  than  do  members  of  the  English  House  of 
Commons  of  the  less  rigid  methods  of  their  own  ancient  and 
famous  body.  I  know  no  better  instance  of  the  self-control 
and  good  humour  of  Americans  than  the  way  in  which  the 
minority  in  the  House  generally  submit  to  the  despotism  of 
the  majority,  consoling  themselves  with  the  reflection  that  it 
is  all  according  to  the  rules  of  the  game,  and  that  their  turn 
will  come  in  due  course.  To  use  the  power  of  closing  debate 
as  stringently  at  Westminster  as  it  is  used  at  Washington 
would  revolutionize  the  life  of  the  House  of  Commons.  But 
the  House  of  Eepresentatives  is  an  assembly  of  a  very  differ- 
ent nature.  Like  the  House  of  Commons  it  is  a  legislating, 
if  hardly  to  be  deemed  a  governing,  body.  But  it  is  not  a 
debating  body.  It  rules  through  and  by  its  committees,  in 
which  discussion  is  unchecked  by  any  closing  power ;  and  the 
whole  House  does  little  more  than  register  by  its  votes  the 
conclusions  which  the  committees  submit.  One  subject  alone, 
the  subject  of  revenue,  that  is  to  say,  taxation  and  appropria- 


136  THE   NATIONAL   GOVERNMENT  part  i 

tion,  receives  genuine  discussion  by  the  House  at  large.  And 
although  the  power  of  limiting  debate  is  often  applied  to 
expedite  such  business,  it  is  seldom  applied  till  opportunity 
has  been  given  for  the  expression  of  all  relevant  views. 

The  rules  regarding  the  procedure  in  committee  of  the  whole 
House  are  in  the  main  similar  to  those  of  the  British  House  of 
Commons  ;  but  the  chairman  of  such  a  committee  is  not  (as 
usually  in  England)  a  permanent  chairman  of  Ways  and 
Means,  but  a  person  nominated  by  the  Speaker  on  each  occa- 
sion. A  rule,  not  duly  observed,  forbids  any  member  to  speak 
twice  to  any  question,  until  every  member  desiring  to  speak 
shall  have  spoken.^ 

The  House  has  a  power  of  going  into  secret  session  whenever 
confidential  communications  are  received  from  the  President, 
or  a  member  informs  it  that  he  has  communications  of  a  secret 
nature  to  make.  But  this  power,  though  employed  in  early 
days,  is  now  in  disuse.  Every  word  spoken  is  reported  by 
official  stenographers  and  published  in  the  Congressional 
Record,  and  the  huge  galleries  are  never  cleared. 

The  number  of  bills  brought  into  the  House  every  year  is 
very  large,  averaging  over  10,000.  In  the  thirty-seventh  Con- 
gress (1861-63)  the  total  number  of  bills  introduced  was  1026, 
viz. :  —  613  House  bills,  and  433  Senate  bills.  In  the  forty- 
sixth  it  had  risen  to  9481,  of  which  7257  were  House  bills, 
2224  Senate  bills,  showing  that  the  increase  has  been  much 
larger  in  the  House  than  in  the  Senate.  In  the  fifty-first  Con- 
gress (1889-91)  the  number  rose  still  further,  viz.  to  19,646 
(including  joint  resolutions),  of  which  14,328  were  introduced 
in  the  House,  5318  in  the  Senate.^  In  the  British  House  of 
Commons  the  total  number  of  bills  introduced  was,  in  the 
session  of  1885,  481,  of  which  202  were  public  and  279  private 
bills,  while  in  the  session  of  1892  the  number  of  public  bills 
had  risen  to  335  (20  of  which  had  come  from  the  Lords),  be- 
sides 80  provisional  order  bills.  America  is,  of  course,  a  far 
larger  country,  but  the  legislative  competence  of  Congress  is 
incomparably  smaller  than  that  of   the  British   Parliament, 

1  Proceedings  in  Committee  of  the  Whole  may  he  expedited  hy  limiting  (hy 
a  vote  of  the  House)  dispussiou  in  Committee  to  a  certain  fixed  period. 

2  Of  these,  2201  passed  hoth  Houses,  and  2171  were  approved  hy  the  Presi- 
dent. 


CHAP,  xin        THE  HOUSK   OF   REPEESENTATIVES  137 

seeing  that  the  chief  part  of  the  field  both  of  public  bill  and 
private  bill  legislation  belongs  in  America  to  the  several  States. 
By  far  the  larger  number  of  bills  in  Congress  are  what  would 
be  called  in  England  "  private  "  or  "  local  and  personal  "  bills, 
i.e.  they  establish  no  general  rule  of  law  but  are  directed  to 
particular  cases.  Such  are  the  numerous  bills  for  satisfying 
persons  with  claims  against  the  Federal  Government,  and  for 
giving  and  restoring  pensions  to  individuals  alleged  to  have 
served  in  the  Northern  armies  during  the  War  of  Secession. 
It  is  only  to  a  very  small  extent  that  bills  can  attempt  to  deal 
with  ordinary  private  law,  since  nearly  the  whole  of  that  topic 
belongs  to  State  legislation.  I  need  scarcely  say  that  the  pro- 
portion of  bills  that  pass  to  bills  that  fail  is  a  very  small  one, 
not  one-thirtieth.^  As  in  England  so  even  more  in  America, 
bills  are  lost  less  by  direct  rejection  than  by  failing  to  reach 
their  third  reading,  a  mode  of  extinction  which  the  good-nature 
of  the  House,  or  the  unwillingness  of  its  members  to  administer 
snubs  to  one  another,  would  prefer  to  direct  rejection,  even 
were  not  the  want  of  time  a  sufficient  excuse  to  the  committees 
for  failing  to  report  them.  One  is  told  in  Washington  that  few 
bills  are  brought  in  with  a  view  to  being  passed.  They  are 
presented  in  order  to  gratify  some  particular  persons  or  places, 
and  it  is  well  understood  in  the  House  that  they  must  not  be 
taken  seriously.  Sometimes  a  less  pardonable  motive  exists. 
The  great  commercial  companies,  and  especially  the  railroad 
companies,  are  often  through  their  land  grants  and  otherwise 
brought  into  relations  with  the  Federal  Government.  Bills  are 
presented  in  Congress  which  purport  to  withdraw  some  of  the 
privileges  of  these  companies,  or  to  establish  or  favour  rival 
enterprises,  but  whose  real  object  is  to  levy  blackmail  on  these 
wealthy  bodies,  since  it  is  often  cheaper  for  a  company  to  buy 
off  its  enemy  than  to  defeat  him  either  by  the  illegitimate 
influence  of  the  lobby,  or  by  the  strength  of  its  case  in  open 
combat.  Several  great  corporations  have  thus  to  maintain  a 
permanent  staff  at  Washington  for  the  sake  of  resisting  legis- 

1  In  the  British  Parliameutary  session  of  1890-91,  154  public  bills  (ont  of 
403  introdueed)  became  law,  of  which  54  were  Government  bills,  75  "pro- 
visional order  "  bills,  only  25  bills  of  private  members.  The  number  of  public 
bills  introduced  is  increasing  in  England,  though  not  so  rapidly  as  in  America, 
but  the  numl)er  of  private  members'  bills  that  are  passed  does  not  increase, 
recent  changes  in  parliamentary  procedure  having  reduced  their  chances. 


138  THE   NATIONAL   GOVERNMENT  part  i 

lative  attacks  upon  them,  some  merely  extortionate,  some  in- 
tended to  win  local  popularity. 

The  title  and  attributions  of  the  Speaker  of  the  House  are 
taken  from  his  famous  English  original.  But  the  character  of 
the  office  has  greatly  altered  from  that  original.  The  note  of 
the  Speaker  of  the  British  House  of  Commons  is  his  impar- 
tiality. He  has  indeed  been  chosen  by  a  party,  because  a  ma- 
jority means  in  England  a  party.  But  on  his  way  from  his 
place  on  the  benches  to  the  Chair  he  is  expected  to  shake  off 
and  leave  behind  all  party  ties  and  sympathies.  Once  invested 
with  the  wig  and  gown  of  office  he  has  no  longer  any  political 
opinions,  and  must  administer  exactly  the  same  treatment  to 
his  political  friends  and  to  those  who  have  been  hitherto  his 
opponents,  to  the  oldest  or  most  powerful  minister  and  to  the 
youngest  or  least  popular  member.  His  duties  are  limited  to 
the  enforcement  of  the  rules  and  generally  to  the  maintenance 
of  order  and  decorum  in  debate,  including  the  selection,  when 
several  members  rise  at  the  same  moment,  of  the  one  who  is 
to  carry  on  the  discussion.  These  are  duties  of  great  impor- 
tance, and  his  position  one  of  great  dignity,  but  neither  the 
duties  nor  the  position  imply  political  power.  It  makes  little 
difference  to  any  English  party  in  Parliament  whether  the  occu- 
pant of  the  chair  has  come  from  their  own  or  from  the  hostile 
ranks.  The  Speaker  can  lower  or  raise  the  tone  and  efficiency 
of  the  House  as  a  whole  by  the  way  he  presides  over  it :  but  a 
custom  as  strong  as  law  forbids  him  to  render  help  to  his  own 
side  even  by  private  advice.  Whatever  information  as  to  par- 
liamentary law  he  may  feel  free  to  give  must  be  equally  at  tlie 
disposal  of  every  member. 

In  America  the  Speaker  has  immense  political  power,  and  is 
permitted,  nay  expected,  to  use  it  in  the  interests  of  his  party. 
He  rules  and  leads  almost  as  Morny  and  Eouher  led  and  ruled 
the  French  Chamber  under  Louis  Napoleon.  In  calling  upon 
members  to  speak  he  prefers  those  of  his  own  side.  He 
decides  in  their  favour  such  points  of  order  as  are  not  dis- 
tinctly covered  by  the  rules.  His  authority  over  the  arrange- 
ment of  business  is  so  large  that  he  can  frequently  advance  or 
postpone  particular  bills  or  motions  in  a  way  which  determines 
their  fate.  A  recent  and  much  respected  Speaker  went  the 
length  of  intimating  that  he  would  not  alloAV  a  certain  bill,  to 


CHAP.  XIII         THE   HOUSE   OF  REPRESENTATIVES  139 

which  he  strongly  objected,  to  be  so  much  as  presented  to  the 
House  ;  and  this  he  could  do  by  refusing  to  recognize  the  mem- 
ber desiring  to  present  it.  Although  the  Speaker  seldom  delivers 
a  speech  in  the  House,  he  may  and  does  advise  the  other  leaders 
of  his  party  privately;  and  when  they  "go  into  caucus"  {i.e.  hold 
a  party  meeting  to  determine  their  action  on  some  pending  ques- 
tion) he  is  present  and  gives  counsel.  He  is  usually  the  most  emi- 
nent member  of  the  party  who  has  a  seat  in  the  House,  and  is 
really,  so  far  as  the  confidential  direction  of  its  policy  goes,  almost 
its  leader.  His  most  important  privilege  is,  however,  the  nomi- 
nation of  the  numerous  standing  committees  already  referred  to. 
In  the  first  Congress  (April  1789)  the  House  tried  the  plan  of 
appointing  its  committees  by  ballot ;  but  this  worked  so  ill  that 
in  January  1790  the  following  rule  was  passed :  —  "  All  commit- 
tees shall  be  appointed  by  the  Speaker  unless  otherwise  spe- 
cially directed  by  the  House."  This  rule  has  been  re-adopted 
by  each  successive  Congress  since  then.^  Not  only  does  he,  at 
the  beginning  of  each  Congress,  select  all  the  members  of  each 
of  these  committees,  he  even  chooses  the  chairman  of  each,  and 
thereby  vests  the  direction  of  its  business  in  hands  approved 
by  himself.  The  chairman  is  of  course  always  selected  from 
the  party  which  commands  the  House,  and  the  committee  is  so 
composed  as  to  give  that  party  a  majority.  Since  legislation, 
and  so  much  of  the  control  of  current  administration  as  the 
House  has  been  able  to  bring  within  its  grasp,  belong  to  these 
committees,  their  composition  practically  determines  the  action 
of  the  House  on  all  questions  of  moment,  and  as  the  chairman- 
ships of  the  more  important  committees  are  the  posts  of  most 
influence,  the  disposal  of  them  is  a  tremendous  piece  of  patron- 
age by  which  a  Speaker  can  attract  support  to  himself  and  his 
own  section  of  the  party,  reward  his  friends,  give  politicians 
the  opportunity  of  rising  to  distinction  or  practically  extin- 
guish their  congressional  career.  The  Speaker  is,  of  course,  far 
from  free  in  disposing  of  these  places.  He  has  been  obliged 
to  secure  'is  own  election  to  the  chair  by  promises  to  leading 

1  In  England  select  committees  on  public  matters  are  appointed  by  the 
House,  i.e.  practically  by  the  "whips"  of  the  several  parties,  though  some- 
times a  discussion  in  the  House  leads  to  the  addition  of  other  members. 
Hybrid  committees  are  appointed  partly  by  the  House  and  partly  by  the  com- 
mittee of  Selection.  Private  bill  committees  are  appointed  by  the  committee 
of  Selection.  This  committee  is  a  small  body  of  the  older  and  more  experi- 
enced members,  intended  to  represent  fairly  all  parties  and  sections  of  opinion. 


140  THE   NATIONAL   GOVERNMENT 


members  and  their  friends ;  and  while  redeeming  such  prom- 
ises, he  must  also  regard  the  wishes  of  important  groups  of 
men  or  types  of  opinion,  must  compliment  particular  States  by 
giving  a  place  on  good  committees  to  their  prominent  repre- 
sentatives, must  avoid  nominations  which  could  alarm  particu- 
lar interests.  These  conditions  surround  the  exercise  of  his 
power  with  trouble  and  anxiety.  Yet  after  all  it  is  power, 
power  which  in  the  hands  of  a  capable  and  ambitious  man 
becomes  so  far-reaching  that  it  is  no  exaggeration  to  call  him 
the  second,  if  not  the  first  political  figure  in  the  United  States, 
with  an  influence  upon  the  fortunes  of  men  and  the  course  of 
domestic  events  superior,  in  ordinary  times,  to  the  President's, 
although  shorter  in  its  duration  and  less  patent  to  the  world.-' 

The  choice  of  a  Speaker  is  therefore  a  political  event  of 
the  highest  significance  ;  and  the  whole  policy  of  a  Congress 
sometimes  turns  upon  whether  the  man  selected  represents 
one  or  another  of  two  divergent  tendencies  in  the  majority. 
Following  thereon  comes  his  distribution  of  members  among 
the  committees,  a  critical  point  in  the  history  of  a  Congress, 
and  one  which  is  watched  with  keen  interest.  He  devotes 
himself  to  this  function  for  the  fortnight  after  his  installation 
with  an  intensity  equalling  that  of  a  European  prime  minister 
constructing  a  cabinet.  The  parallel  goes  further,  for  as  the 
chairmanships  of  the  chief  committees  may  be  compared  to 
the  cabinet  offices  of  Europe,  so  the  Speaker  is  himself  a  great 
party  leader  as  well  as  the  president  of  a  deliberative  assembly. 

Although  expected  to  serve  his  party  in  all  possible  direc- 
tions, he  must  not  resort  to  all  possible  means.     Both  in  the 

1  "The  appointment  of  the  committees  implies  the  distribution  of  work  to 
every  member.  It  means  the  determination  of  the  cast  business  shall  take. 
It  decides  for  or  against  all  large  matters  of  policy,  or  may  so  decide ;  for 
while  Speakers  will  differ  from  each  other  greatly  in  force  of  character  and  in 
the  wish  to  give  positive  direction  to  affairs,  the  weakest  man  cannot  escape 
from  the  necessity  of  arranging  the  appointments  with  a  view  to  the  probable 
character  of  measures  which  will  be  agitated.  This,  however,  is  far  from  the 
measure  of  the  Speaker's  power.  All  rules  are  more  or  less  flexible.  The 
current  of  precedents  is  never  consistent  or  uniform.  The  bias  of  the  Speaker 
at  a  critical  moment  will  turn  the  scale.  Mr.  Randall  as  Speaker  determined 
the  assent  of  the  House  to  the  action  of  the  Electoral  Commission  [of  1877]. 
Had  he  wished  for  a  revolutionary  attempt  to  prevent  the  announcement  of 
Hayes's  election,  no  one  who  has  had  experience  in  Congress,  at  least,  will 
doubt  that  he  could  have  forced  the  collision."— From  an  article  in  the  New 
York  Nation  of  April  4,  1878,  by  an  experienced  member  of  Congress. 


CHAP,  xin        THE   HOUSE   OF   KEPRESENTATIVES  141 

conduct  of  debate  and  in  the  formation  of  committees  a  cer- 
tain measure  of  fairness  to  opponents  is  required  from  laim. 
He  must  not  palpably  wrest  the  rules  of  the  House  to  their 
disadvantage,  though  he  may  decide  all  doubtful  points  against 
them.  He  must  give  them  a  reasonable  share  of  "the  floor" 
(i.e.  of  debate).  He  must  concede  to  them  proper  represen- 
tation on  committees. 

The  dignity  of  the  Speaker's  office  is  high.  He  receives 
f  8000  a  year  (£1600),  which  is  a  large  salary  for  America. 
In  rank  he  stands  next  after  the  Vice-President  and  on  a  level 
with  the  justices  of  the  Supreme  Court.  Washington  society 
was  lately  agitated  by  a  claim  of  his  wife  to  take  precedence 
over  the  wives  of  these  judges,  a  claim  so  ominous  in  a  demo- 
cratic country  that  efforts  were  made  to  have  it  adjusted  with- 
out a  formal  decision. 


CHAPTER   XIV 

THE    HOUSE    AT    WORK 

An  Englishman  expects  to  find  his  House  of  Commons 
reproduced  in  the  House  of  Eepresentatives.  He  has  the 
more  reason  for  this  notion  because  he  knows  that  the  latter 
was  modelled  on  the  former,  has  borrowed  many  of  its  rules 
and  technical  expressions,  and  regards  the  procedure  of  the 
English  chamber  as  a  storehouse  of  precedents  for  its  own 
guidance.^  The  notion  is  delusive.  Resemblances  of  course 
there  are.  But  an  English  parliamentarian  who  observes  the 
American  House  at  work  is  more  impressed  by  the  points  of 
contrast  than  by  those  of  similarity.  The  life  and  spirit  of 
the  two  bodies  are  wholly  different. 

The  room  in  which  the  House  meets  is  in  the  south  wing  of 
the  Capitol,  the  Senate  and  the  Supreme  Court  being  lodged 
in  the  north  wing.  It  is  more  than  thrice  as  large  as  the 
English  House  of  Commons,  with  a  floor  about  equal  in  area 
to  that  of  Westminster  Hall,  1.39  feet  long  by  93  feet  wide 
and  36  feet  high.  Light  is  admitted  through  the  ceiling. 
There  are  on  all  sides  deep  galleries  running  backwards  over 
the  lobbies,  and  capable  of  holding  two  thousand  five  hundred 
persons.  The  proportions  are  so  good  that  it  is  not  till  you 
observe  how  small  a  man  looks  at  the  farther  end,  and  how  faint 
ordinary  voices  sound,  that  you  realize  its  vast  size.  The  seats 
are  arranged  in  curved  concentric  rows  looking  towards  the 
Speaker,  whose  handsome  marble  chair  is  placed  on  a  raised 
marble  platform  projecting  slightly  forward  into  the  room, 
the  clerks  and  the  mace  below  in  front  of  him,  in  front  of  the 

1  Both  the  Senate  and  the  House  of  Representatives  have  recognized  Jeffer- 
son's 3/ani«(Z  o/ParZiOJ7ieH<«r?/ Practice  as  governing  the  House  when  none 
of  its  own  rules  (or  of  the  joint  rules  of  Congress)  are  applicable.    This  manual 
prepared  by  President  Jefferson,  is  based  on  English  precedents. 
142 


CHAP.  XIV  THE    HOUSE   AT   WORK  143 

clerks  the  official  stenographers,  to  the  right  the  seat  of  the 
sergeant-at-arins.  Each  member  has  a  revolving  arm-chair, 
with  a  roomy  desk  in  front  of  it,  where  he  writes  and  keeps 
his  papers.  Behind  these  chairs  runs  a  railing,  and  behind  the 
railing  is  an  open  space  into  which  some  classes  of  strangers 
may  be  brought,  where  sofas  stand  against  the  wall,  and  where 
smoking  is  practised,  even  by  strangers,  though  the  rules 
forbid  it. 

"When  you  enter,  your  first  impression  is  of  noise  and  tur- 
moil, a  noise  like  that  of  short  sharp  waves  in  a  Highland 
loch,  fretting  under  a  squall  against  a  rocky  shore.  The  rais- 
ing and  dropping  of  desk  lids,  the  scratching  of  pens,  the  clap- 
ping of  hands  to  call  the  pages,  keen  little  boys  who  race 
along  the  gangways,  the  pattering  of  many  feet,  the  hum  of 
talking  on  the  floor  and  in  the  galleries,  make  up  a  din  over 
which  the  Speaker  with  the  sharp  taps  of  his  hammer,  or  the 
orators  straining  shrill  throats,  find  it  hard  to  make  them- 
selves audible.  Nor  is  it  only  the  noise  that  gives  the  impres- 
sion of  disorder.  Often  three  or  four  members  are  on  their 
feet  at  once,  each  shouting  to  catch  the  Speaker's  attention. 
Others,  tired  of  sitting  still,  rise  to  stretch  themselves,  while 
the  Western  visitor,  long,  lank,  and  imperturbable,  leans  his 
arms  on  the  railing,  chewing  his  cigar,  and  surveys  the  scene 
with  little  reverence.  Less  favourable  conditions  for  oratory 
cannot  be  imagined,  and  one  is  not  surprised  to  be  told  that 
debate  was  more  animated  and  practical  in  the  much  smaller 
room  which  the  House  formerly  occupied. 

Not  only  is  the  present  room  so  big  that  only  a  poAverful 
and  well-trained  voice  can  fill  it,  but  the  desks  and  chairs 
make  a  speaker  feel  as  if  he  were  addressing  furniture  rather 
than  men,  while  of  the  members  few  seem  to  listen  to  the 
speeches.  It  is  true  that  they  sit  in  the  House  instead  of 
running  frequently  out  into  the  lobbies,  but  they  are  more 
occupied  in  talking  or  Avriting,  or  reading  newspapers,  than  in 
attending  to  the  debate.  To  attend  is  not  easy,  for  only  a 
shrill  voice  can  overcome  the  murmurous  roar  ;  and  one  some- 
times finds  the  newspapers  in  describing  an  unusually  effective 
speech,  observe  that  "  Mr.  So-and-So's  speech  drew  listeners 
about  him  from  all  parts  of  the  House."  They  could  not  hear 
him  where  they  sat,  so  they  left  their  places  to  crowd  in  the 


144  THE   NATIONAL   GOVERNMENT 


gangways  near  him.  "  Speaking  in  the  House,"  says  an 
American  writer,  ''  is  like  trying  to  address  the  people  in  the 
Broadway  omnibuses  from  the  kerbstone  in  front  of  the  Astor 
House.  .  .  .  Men  of  fine  intellect  and  of  good  ordinary 
elocution  have  exclaimed  in  despair  that  in  the  House  of 
Representatives  the  mere  physical  effort  to  be  heard  uses  up 
all  the  powers,  so  that  intellectual  action  becomes  impossible. 
The  natural  refuge  is  in  written  speeches  or  in  habitual  si- 
lence, which  one  dreads  more  and  more  to  break." 

It  is  hard  to  talk  calm  good  sense  at  the  top  of  your  voice, 
hard  to  unfold  a  complicated  measure.  A  speaker's  vocal 
organs  react  upon  his  manner,  and  his  manner  on  the  sub- 
stance of  his  speech.  It  is  also  hard  to  thunder  at  an  unscru- 
pulous majority  or  a  factious  minority  when  they  do  not  sit 
opposite  to  you,  but  beside  you,  and  perhaps  too  much  occu- 
pied with  their  papers  to  turn  round  and  listen  to  you.  The 
Americans  think  this  an  advantage,  because  it  prevents  scenes 
of  disorder.  They  may  be  right ;  but  what  order  gains  ora- 
tory loses.  It  is  admitted  that  the  desks  encourage  inatten- 
tion by  enabling  men  to  write  their  letters  ;  but  though  nearly 
everybody  agrees  that  they  would  be  better  away,  nobody 
supposes  that  a  proposition  to  remove  them  would  succeed.^ 
So  too  the  huge  galleries  add  to  the  area  the  voice  has  to  fill ; 
but  the  public  like  them,  and  might  resent  a  removal  to  a 
smaller  room.  The  smoking  shocks  an  Englishman,  but  not 
more  than  the  English  practice  of  wearing  hats  in  both  Houses 
of  Parliament  shocks  an  American.  Interruption,  cries  of 
"Divide,"  interjected  remarks,  are  not  more  frequent  —  when 
I  have  been  present  they  seemed  to  be  much  less  frequent  — 
than  in  the  House  of  Commons.  Approval  is  expressed  more 
charily,  as  is  usually  the  case  in  America.  Instead  of  "  Hear, 
hear,"  there  is  a  clapping  of  hands  and  hitting  of  desks.  Ap- 
plause is  sometimes  given  from  the  galleries ;  and  occasionally 
at  the  end  of  a  session  both  the  members  below  and  the  stran- 
gers in  the  galleries  above  have  been  known  to  join  in  singing 
some  popular  ditty. 

There  is  little  good  speaking.     I  do  not  mean  merely  that 

1  The  House  decided  in  1859,  at  the  end  of  one  Congress,  that  the  desks 
should  be  removed  from  the  Hall  (as  the  House  is  called),  but  in  the  next  suc- 
ceeding session  the  old  arrangement  was  resumed. 


CHAP.  XIV  THE   HOUSE   AT   WORK  14o 


fine  oratory,  oratory  which  presents  vahiable  thoughts  in  elo- 
quent Avords,  is  rare,  for  it  is  rare  in  all  assemblies.  But  in  the 
House  of  Representatives  a  set  speech  upon  any  subject  of 
importance  tends  to  become  not  an  exposition  or  an  argument 
but  a  piece  of  elaborate  and  high-flown  declamation.  Its  au- 
thor is  often  wise  enough  to  send  direct  to  the  reporters  what 
he  has  written  out,  having  read  aloud  a  small  part  of  it  in  the 
House.  When  it  has  been  printed  in  extenso  in  the  Congres- 
sional Becord  (leave  to  get  this  done  being  readily  obtained), 
he  has  copies  struck  off  and  distributes  them  among  his  con- 
stituents.    Thus  everybody  is  pleased  and  time  is  saved.^ 

That  there  is  not  much  good  business  debating,  by  which  I 
mean  a  succession  of  comparatively  short  speeches  addressed 
to  a  practical  question,  and  hammering  it  out  by  the  collision 
of  mind  with  mind,  arises  not  from  any  want  of  ability  among 
the  members,  but  from  the  unfavourable  conditions  under  which 
the  House  acts.  Most  of  the  practical  work  is  done  in  the 
standing  committees,  while  much  of  the  House's  time  is  con- 
sumed in  pointless  discussions,  where  member  after  member 
delivers  himself  upon  large  questions,  not  likely  to  be  brought 
to  a  definite  issue.  Many  of  the  speeches  thus  called  forth 
have  a  value  as  repertories  of  facts,  but  the  debate  as  a  whole  is 
unprofitable  and  languid.  On  the  other  hand  the  five-minute 
debates  which  take  place,  when  the  House  imposes  that  limit  of 
time,  in  Committee  of  the  Whole  on  the  consideration  of  a  bill 
reported  from  a  standing  committee,  are  often  lively,  pointed, 
and  effective.  The  topics  which  excite  most  interest  and  are  best 
discussed  are  those  of  taxation  and  the  appropriation  of  money, 
more  particularly  to  public  works,  the  improvement  of  rivers 
and  harbours,  erection  of  Federal  buildings,  and  so  forth.  This 
kind  of  business  is  indeed  to  most  of  its  members  the  chief  in- 
terest of  Congress,  the  business  which  evokes  the  finest  skill  of  a 
tactician  and  offers  the  severest  temptations  to  a  frail  conscience. 
As  a  theatre  or  school  either  of  political  eloquence  or  political 
wisdom,  the  House  has  been  inferior  not  only  to  the  Senate 
but  to  most  European  assemblies.  Nor  does  it  enjoy  much  con- 
sideration at  home.     Its  debates  are  very  shortly  reported  in 

1 1  was  told  that  formerly  speeches  might  be  printed  in  the  Record  as  a 
matter  of  course,  hut  that,  a  member  having  used  this  privilege  to  print  and 
circulate  a  poem,  the  right  was  restrained. 

VOL.  I  L 


146  THE   NATIONAL   GOVERNMENT 


the  Washington  papers  as  well  as  in  those  of  Philadelphia  and 
New  York.  They  are  not  widely  read  except  in  very  exciting 
times,  and  do  little  to  instruct  or  influence  public  opinion. 

This  is  of  course  only  one  part  of  a  legislature's  functions. 
An  assembly  may  despatch  its  business  successfully  and  yet 
shine  with  few  lights  of  genius.  But  the  legislation  on  public 
matters  which  the  House  turns  out  is  scanty  in  quantity  and 
generally  mediocre  in  quality.  What  is  more,  the  House 
tends  to  avoid  all  really  grave  and  pressing  questions,  skirmish- 
ing round  them,  but  seldom  meeting  them  in  the  face  or  reach- 
ing a  decision  which  marks  an  advance.  If  one  makes  this 
observation  to  an  American,  he  replies  that  at  this  moment 
there  are  few  such  questions  lying  within  the  competence  of 
Congress,  and  that  in  his  country  representatives  must  not 
attempt  to  move  faster  than  their  constituents.  This  latter 
remark  is  eminently  true ;  it  expresses  a  feeling  which  has 
gone  so  far  that  Congress  conceives  its  duty  to  be  to  follow  and 
not  to  seek  to  lead  public  opinion.  The  harm  actually  suffered 
so  far  is  not  grave.  But  the  European  observer  cannot  escape 
the  impression  that  Congress  might  fail  to  grapple  with  a 
serious  public  danger,  and  is  at  present  hardly  equal  to  the 
duty  of  guiding  and  instructing  the  political  intelligence  of  the 
nation. 

In  all  assemblies  one  must  expect  abundance  of  unreality  and 
pretence,  many  speeches  obviously  addressed  to  the  gallery, 
many  bills  meant  to  be  circulated  but  not  to  be  seriously  pro- 
ceeded with.  However,  the  House  seems  to  indulge  itself  more 
freely  in  this  direction  than  any  other  chamber  of  equal  rank. 
Its  galleries  are  large,  holding  2500  persons.  But  it  talks  and 
votes,  I  will  not  say  to  the  galleries,  for  the  galleries  cannot 
hear  it,  but  as  if  every  section  of  American  opinion  was  present 
in  the  room.  It  adopts  unanimously  resolutions  which  perhaps 
no  single  member  in  his  heart  approves  of,  but  which  no  one 
cares  to  object  to,  because  it  seems  not  worth  while  to  do  so. 
This  habit  sometimes  exposes  it  to  a  snub,  such  as  that  admin- 
istered by  Bismarck  in  the  matter  of  the  resolution  of  condo- 
lence with  the  German  Parliament  on  the  death  of  Lasker,  a 
resolution  harmless  indeed  but  so  superfluous  as  to  be  almost 
obtrusive.  A  practice  unknown  to  Europeans  is  of  course  mis- 
understood by  them,  and  sometimes  provokes  resentment.    Bills 


ciiAi'.  xiv  TIJK    HOUSE   AT    VVOKK  147 

are  frequently  ))r()u_t(lit  into  the  House  proposing  to  effect 
impossible  obje(;ts  by  absurd  means,  which  astonish  a  visitor, 
and  may  even  cause  disquiet  in  other  countries,  while  few 
people  in  America  notice  them,  and  no  one  thinks  it  worth 
while  to  expose  tluni-  emptiness.  American  statesmen  keep 
their  pockets  fvdl  of  tlie  loose  cash  of  empty  compliments  and 
pompous  phrases,  and  become  so  accustomed  to  scatter  it  among 
the  crowd  that  they  are  surprised  when  a  complimentary  reso- 
lution or  electioneering  bill,  intended  to  humour  some  section 
of  opinion  at  home,  is  taken  seriously  abroad.  The  House  is 
particulai'ly  apt  to  err  in  this  way,  because  having  no  responsi- 
bility in  foreign  policy,  and  little  sense  of  its  own  dignity,  it 
applies  to  internatif)nal  affairs  the  habits  of  election  meetings. 
Wntching  the  Hoiise  at  work,  and  talking  to  the  members 
in  the  lobbies,  an  Englishman  naturally  asks  himself  how  the 
intellectual  quality  of  the  body  compares  with  that  of  the 
House  of  Commons.  His  American  friends  have  prepared 
him  to  expect  a  marked  inferiority.  They  are  fond  of  run- 
ning down  congressmen.  The  cultivated  New  Englanders  and 
New  Yorkers  do  this  out  of  intellectual  fastidiousness,  and  in 
order  to  support  the  role  which  they  unconsciously  fall  into 
when  talking  to  Europeans.  The  rougher  Western  men  do  it 
because  they  would  not  have  congressmen  either  seem  or  be 
better  in  any  way  than  themselves,  since  that  would  be  opposed 
to  republican  equality.  A  stranger  who  has  taken  literally  all 
he  hears  is  therefore  surprised  to  find  so  much  character, 
shrewdness,  and  keen  though  limited  intelligence  among  the 
representatives.  Their  average  business  capacity  is  not  below 
that  of  members  of  the  House  of  Commons.  True  it  is  that 
great  lights,  such  as  usually  adorn  the  British  chamber,  are 
absent :  true  also  that  there  are  fewer  men  who  have  received 
a  high  education  which  has  developed  their  tastes  and  enlarged 
their  horizons.  The  Avant  of  such  men  seriously  depresses  the 
average.  It  is  raised,  however,  by  the  almost  total  absence  of 
two  classes  hitherto  well  represented  in  the  British  Parlia- 
ment, the  rich,  didl  parvenu,  who  has  bought  himself  into  pub- 
lic life,  and  the  perhaps  equally  unlettered  young  sporting  or 
fashionable  man  who,  neither  knowing  nor  caring  anything 
about  politics,  has  come  in  for  a  county  or  (before  1885)  a 
small  borough,  on  the  strength  of  his  family  estates.     Few 


148  THK   KAllONAl.   lUU"  KKNMKM' 


conjjrt^ssmou  sink  to  so  lo\v  au  iutelloct\ial  levol  as  those  tw*o 
sots  of  jvi-sons.  for  oougivssmon  havo  almost  certsvinly  nuulo 
thoii'  way  l\v  onoi'gy  and  siuartuoss,  piokiiig  up  a  ki\o\\  Unlgi^  of 
mou  aiul  things  "all  tho  tiiuo."  h\  ivspoot  of  wiilth  of  viow, 
of  ca|xvoitj  for  peuetratiug  thought  on  politioal  pwblonts, 
ropivsontiitives  aiv  soaivolv  aU^ve  the  class  frv)ni  which  they 
canvc,  that  of  sccoud-Kxto  lawvci^s  or  farnici'S.  h^ss  often  mer- 
chants or  petty  manuftin'tuvvi's.  They  do  not  pivtcnd  to  Ih» 
sratcsmcu  in  the  European  sense  of  the  \voi>l.  for  their  caunn^s, 
Avhich  have  made  them  smart  and  active,  have  given  them 
little  ^opportunity  for  acquiring  such  capicities.  As  n^g;vi\ls 
n\anners  they  are  not  polished.  IvtH'nuse  they  have  iu>t  lived 
among  polished  people ;  yet  neither  aiv  they  rude,  for  to  gi^t 
on  in  American  politics  oi\e  nuist  W  civil  and  pleasant.  The 
standav\l  of  parlianientary  languagi\  and  of  courtesy  gvnunully, 
has  tended  to  rise  during  tJie  hvst  few  decavh^s ;  and  scenes 
of  violence  and  confusion  sudi  as  occasionally  convulse  the 
French  chamber,  and  were  common  in  Washiiigton  before  the 
War  of  Secession,  are  now  i";ire. 

On  the  whole,  the  u\ost  striking  difiVrence  between  the 
House  of  -Representatives  and  Kuwpean  popular  assemblies  is 
its  givater  homogeneity.  The  type  is  marked ;  the  individuals 
\-arv  little  fwm  the  type.  In  Euwpe  all  sorts  of  persons  aiv 
sucked  into  the  vortex  of  the  legislatniv.  nobles  and  landown- 
ers, lawyers.  physiciai\s,  business  men.  artisans,  jo\irualists. 
men  of  learning,  men  of  sciencvv  In  America  live  ivprescnt;i- 
tives  out  of  six  are  politicians  pure  and  simple,  mend>ers  of  a 
class  as  well  de fined  as  any  one  of  the  above-n\eutioi\cd  Euix>- 
pean  classes.  The  American  people,  though  it  is  composed  of 
immigrants  fronx  every  country  and  occupies  a  whole  conti- 
nent, tends  to  become  more  uniform  than  most  of  the  great 
European  peoples;  and  this  cliaractevistie  is  palpable  in  its 
legislature. 

Uneasy  lies  the  head  ot"  an  ambitious  oi>ugrossman,'  for  tlie 
chances  are  at  least  even  that  he  will  lose  his  seat  at  the  next 
election.     It  was  observed  in  1788  that  half  of  the  members  of 

1  Tho  lovm  "  Conjivossu(;ui  "  is  v'onunonly  wsott  to  dosoril>o  a  inomluM-  of  iho 
Houso  of  Koprosont;vtivt>s.  though  of  oourso  it  ought  to  iuoliuio  souators  also. 
So  in  Enulauil  "  MoihIhm-  of  I'avliainont  "  moans  nuM^ibor  of  tlio  Houso  of  Com- 
mons, thougli  it  oovois  all  porsons  who  havo  soais  iu  tho  Ihniso  of  l.\n-ils. 


ciiAi'.  x;v  I  II J.    ilOUSE   AT    WORK  149 

each  successive  State  legislature  were  new  membere,  and  this 
average  lias  been  usually  maintained  in  the  Federal  legislature, 
ratlier  less  than  liall'  keeping  tln^ir  seats  from  one  Congress  to 
the  next.  In  England  the  proportion  of  members  re-elected 
from  Parliament  to  J-'arliament  is  much  higher.  Any  one  can 
see  how  much  influence  this  constant  change  in  the  composi- 
tion of  the  American  House  must  liave  upon  its  legislative 
efficiency. 

I  have  kept  to  the  last  the  feature  of  the  House  which 
Europeans  find  the  strangest. 

It  lias  parties,  but  they  are  headless.  There  is  neither 
Government  nor  Opposition ;  neither  leaders  nor  whips,  'No 
person  holding  any  Federal  office  or  receiving  any  Federal 
salary,  can  be  a  member  of  it.  That  the  majority  may  be  and 
often  is  opjjosed  to  the  President  and  his  cabinet,  does  not 
strike  Americans  as  odd,  because  they  proceed  on  the  theory 
that  the  legislative  ought  to  be  distinct  from  the  executive 
authority.  Since  no  minister  sits,  there  is  no  official  repre- 
sentative of  the  i>arty  Avhich  for  the  time  being  holds  the  reins 
pf  the  executive  government.  Neither  is  there  any  unofficial 
representative.  And  as  there  are  no  persons  whose  opinions 
expressed  in  debate  are  followed,  so  there  are  none  whose  duty 
it  is  to  bring  up  members  to  vote,  to  secure  a  quomm,  to  see 
that  people  know  which  way  the  bulk  of  the  party  is  going. 

So  far  as  the  majority  has  a  chief,  that  chief  is  the  Speaker, 
who  has  been  chosen  by  them  as  their  ablest  and  most  influen- 
tial man ;  but  as  the  Speaker  seldom  joins  in  debate  (though 
he  may  do  so  by  leaving  the  chair,  having  put  some  one  else 
in  it),  the  chairman  of  the  most  important  committee,  that  of 
Ways  and  Means,  enjoys  a  sort  of  eminence,  and  comes  nearer 
than  any  one  else  to  the  position  of  leader  of  the  House.^  But 
his  authority  does  not  always  enable  him  to  secure  co-operation 
for  debate  among  the  best  speakers  of  his  i>arty,  putting  up 
now  one  now  another,  after  the  fashion  of  an  English  jjrime 
minister,  and  thereby  guiding  the  general  course  of  the  dis- 
cussion. 

The  minority  do  not  formally  choose  a  leader,  nor  is  there 
usually  an}'  one  among  them  whose  eareer  marks  him  out  as 

'  Tlif;  Cliairiiian  ol  llie  Committee  on  ApijroiJiiations  has  perhaps  as  much 
real  power. 


150  THE   NATIONAL   GOVERNMENT  part  i 

practically  the  first  man,  but  the  person  whom  they  have  put 
forward  as  their  party  candidate  for  the  Speakership,  giving 
him  what  is  called  "the  complimentary  nomination,"  has  a 
sort  of  vague  claim  to  he  so  regarded.  This  honour  amounts 
to  very  little.  In  the  forty-eighth  Congress  the  Speaker 
of  the  last  preceding  Congress  received  such  a  complimentary 
nomination  from  the  Republicans  against  Mr.  Carlisle,  whom 
the  Democratic  majority  elected.  But  the  Republicans  imme- 
diately afterwards  refused  to  treat  their  nominee  as  leader,  and 
left  him,  on  some  motion  which  he  made,  in  a  ridiculously 
small  minority.  Of  course  when  an  exciting  question  comes 
up,  some  man  of  marked  capacity  and  special  knowledge  will 
often  become  virtually  leader,  in  either  party,  for  the  purposes 
of  the  debates  upon  it.  But  he  Avill  not  necessarily  command 
the  votes  of  his  oAvn  side. 

How  then  does  the  House  work  ? 

If  it  were  a  Chamber,  like  those  of  France  or  Germany, 
divided  into  four  or  five  sections  of  opinion,  none  of  which 
commands  a  steady  majority,  it  would  not  work  at  all.  But 
parties  are  few  in  the  United  States,  and  their  cohesion  tight. 
There  are  usually  two  only,  so  nearly  equal  in  strength  that 
the  majority  cannot  afford  to  dissolve  into  groups  like  those  of 
France.  Hence  upon  all  large  national  issues,  whereon  the 
general  sentiment  of  the  party  has  been  declared,  both  the 
majority  and  the  minority  know  how  to  vote,  and  vote  solid. 

If  the  House  were,  like  the  English  House  of  Commons,  to 
some  extent  an  executive  as  well  as  a  legislative  body  —  one  by 
whose  co-operation  and  support  the  daily  business  of  govern- 
ment had  to  be  carried  on  —  it  could  not  work  without  leaders 
and  whips.  This  it  is  not.  It  neither  creates,  nor  controls, 
nor  destroys,  the  Administration,  which  depends  on  the  Pres- 
ident, himself  the  offspring  of  a  direct  popular  mandate. 

"  Still,"  it  may  be  replied,  "  the  House  has  important  func- 
tions to  discharge.  Legislation  comes  from  it.  Supply  de- 
pends on  it.  It  settles  the  tariff,  and  votes  money  for  the 
civil  and  military  services,  besides  passing  measures  to  cure 
the  defects  which  experience  nmst  disclose  in  the  working  of 
every  government,  every  system  of  jurisprudence.  How  can 
it  satisfy  these  calls  upon  it  without  leaders  and  organiza- 
tion ?  " 


CHAP.  XIV  THE    HOUSE   AT   WORK  151 

To  a  European  eye,  it  does  not  seem  to  satisfy  them.  It 
votes  the  necessary  supplies,  but  not  wisely,  giving  sometimes 
too  much,  sometimes  too  little  money,  and  taking  no  adequate 
securities  for  the  due  application  of  the  sums  voted.  For 
many  years  past  it  has  fumbled  over  both  the  tariff  problem 
and  the  currency  problem.  It  produces  few  useful  laws,  and 
leaves  on  one  side  many  grave  practical  questions.  An  English- 
man is  disposed  to  ascribe  these  failures  to  the  fact  that  as 
there  are  no  leaders,  there  is  no  one  responsible  for  the  neglect 
of  business,  the  miscarriage  of  bills,  the  unwise  appropriation 
of  public  funds.  "  In  England,"  he  says,  "  the  ministry  of  the 
day  bears  the  blame  of  whatever  goes  wrong  in  the  House  of 
Commons.  Having  a  majority,  it  ought  to  be  able  to  do  what 
it  desires.  If  it  pleads  that  its  measures  have  been  obstructed, 
and  that  it  cannot  under  the  faulty  procedure  of  the  House  of 
Commons  accomplish  what  it  seeks,  it  is  met,  and  crushed,  by 
the  retort  that  in  such  case  it  ought  to  have  the  procedure 
changed.  What  else  is  its  majority  good  for  but  to  secure 
the  efficiency  of  Parliament  ?  In  America  there  is  no  person 
against  whom  similar  charges  can  be  brought.  Although 
conspicuous  folly  or  perversity  on  the  part  of  the  majority 
tends  to  discredit  them  collectively  with  the  public,  and  may 
damage  them  at  the  next  presidential  or  congressional  election, 
still  responsibility,  to  be  effective,  ought  to  be  fixed  on  a  few 
conspicuous  leaders.  Is  not  the  want  of  such  men,  men  to 
whom  the  country  can  look,  and  whom  the  ordinary  members 
will  follow,  the  cause  of  some  of  the  faults  which  are  charged 
on  Congress,  of  its  hesitations,  its  inconsistencies  and  changes, 
its  ignoble  surrenders  to  some  petty  clique,  its  deficient  sense 
of  dignity,  its  shrinking  from  troublesome  questions,  its  pro- 
clivity to  jobs  ?" 

Two  American  statesmen  to  whom  such  a  criticism  was  sub- 
mitted, replied  as  follows  :  "  It  is  not  for  want  of  leaders  that 
Congress  has  forborne  to  settle  the  questions  mentioned,  but 
because  the  division  of  opinion  in  the  country  regarding  them 
has  been  faithfully  reflected  in  Congress.  The  majority  has  not 
been  strong  enough  to  get  its  way ;  and  this  has  happened,  not 
only  because  abundant  opportunities  for  resistance  arise  from 
the  methods  of  doing  business,  but  still  more  because  no  dis- 
tinct impulse  or  mandate  towards  any  particular  settlement  of 


152  THE   NATIONAL   GOVERNilENT  part  i 

these  questions  has  been  received  from  the  coimtrv.  It  is  not 
for  Congress  to  go  faster  than  the  people.  AVhen  the  country- 
knows  and  speaks  its  mind,  Congress  will  not  fail  to  act."  The 
significance  of  this  reply  lies  in  its  pointing  to  a  fundamental 
difference  between  the  conception  of  the  respective  positions 
and  duties  of  a  representative  body  and  of  the  nation  at  large 
entertained  by  Americans,  and  the  conception  which  has  hitherto 
prevailed  in  Eui-ope.  Europeans  have  thought  of  a  legislature 
as  belonging  to  the  governing  class.  In  America  there  is  no  such 
class.  Europeans  think  that  the  legislature  ought  to  consist  of 
the  best  men  in  the  country,  Americans  that  it  should  be  a  fair 
average  sample  of  the  countr^^  Europeans  think  that  it  ought 
to  lead  the  nation,  Americans  that  it  ought  to  follow  the  nation. 
Without  some  sort  of  organization,  an  assembly  of  three 
hundred  and  thirty  men  would  be  a  mob,  so  necessity  has  pro- 
vided in  the  system  of  committees  a  substitute  for  the  European 
party  organization.  This  system  will  be  explained  in  the  next 
chapter ;  for  the  present  it  is  enough  to  observe  that  when  a 
anatter  which  has  been  (as  all  bills  are)  referred  to  a  committee, 
comes  up  in  the  House  to  be  dealt  with  there,  the  chairman  of 
the  particular  committee  is  treated  as  a  leader  pro  hac  vice,  and 
members  who  knew  nothing  of  the  matter  are  apt  to  be  guided 
by  his  speech  or  his  advice  given  privately.  If  his  advice  is 
not  available,  or  is  suspected  becaiise  he  belongs  to  the  opposite 
party,  they  seek  direction  from  the  member  in  charge  of  the 
bill,  if  he  belongs  to  their  own  party,  or  from  some  other  mem- 
ber of  the  committee,  or  from  some  friend  whom  they  trust. 
When  a  debate  arises  unexpectedly  on  a  question  of  importance, 
members  are  often  puzzled  how  to  vote.  The  division  being 
taken,  they  get  some  one  to  move  a  call  of  yeas  and  nays,  and 
Avhile  this  slow  process  goes  on,  they  scurry  about  asking  advice 
as  to  their  action,  and  give  their  votes  on  the  second  calling  over 
if  not  ready  on  the  first.  If  the  issue  is  one  of  serious  conse- 
quence to  the  party,  a  recess  is  demanded  by  the  majority,  say 
for  two  hours.  The  House  then  adjourns,  each  party  "  goes 
into  caucus"  (the  Speaker  possibly  announcing  the  fact),  and 
debates  the  matter  with  closed  doors.  Then  the  House  resumes, 
and  each  party  votes  solid  according  to  the  determination 
arrived  at  in  caucus.  In  spite  of  these  expedients,  surprises 
and  scratch  votes  are  not  uncommon. 


CHAP   xiv  THE    HOUSE   AT   WORK  153 

I  have  spoken  of  the  din  of  the  House  of  Eepresentatives,  of 
its  air  of  restlessness  and  confusion,  contrasting  with  the  staid 
gravity  of  the  Senate,  of  the  absence  of  dignity  both  in  its  pro- 
ceedings and  in  the  bearing  and  aspect  of  individual  members. 
All  tliese  things  notwithstanding,  there  is  something  impres- 
sive about  it,  something  not  unworthy  of  the  continent  for 
which  it  legislates. 

This  huge  gray  hall,  filled  with  perpetual  clamour,  this  mul- 
titude of  keen  and  eager  faces,  this  ceaseless  coming  and  going 
of  man}^  feet,  this  irreverent  public,  watching  from  the  galleries 
and  forcing  its  way  on  to  the  floor,  all  speak  to  the  beholder's 
mind  of  the  mighty  democracy,  destined  in  another  century 
to  form  one  half  of  civilized  mankind,  whose  affairs  are  here 
debated.  If  the  men  are  not  great,  the  interests  and  the 
issues  are  vast  and  fatefid.  Here,  as  so  often  in  America,  one 
thinks  rather  of  the  future  than  of  the  present.  Of  what  tre- 
mendous struggles  may  not  this  hall  become  the  theatre  in 
ages  yet  far  distant,  when  the  parliaments  of  Eiu'ope  have 
shrmik  to  insignificance  ? 


CHAPTER   XV 

THE  COMMITTEES  OF  CONGRESS 

The  most  abiding  difficulty  of  free  government  is  to  get  large 
assemblies  to  work  promptly  and  smoothly  either  for  legisla- 
tive or  executive  purposes.  We  perceive  this  difficulty  in  pri- 
mary assemblies  of  thousands  of  citizens,  like  those  of  ancient 
Athens  or  Syracuse ;  we  see  it  again  in  the  smaller  repre- 
sentative assemblies  of  modern  countries.  Three  methods  of 
overcoming  it  have  been  tried.  One  is  to  leave  very  few  and 
comparatively  simple  questions  to  the  assembly,  reserving  all 
others  for  a  smaller  and  more  permanent  body,  or  for  executive 
officers.  This  was  the  plan  of  the  Romans,  where  the  comitia 
(primary  assemblies)  were  convoked  only  to  elect  magistrates 
and  pass  laws,  which  were  short,  clear,  and  submitted  en  bloc, 
without  possibility  of  amendment,  for  a  simple  Yes  or  No. 
Another  method  is  to  organize  the  assemblies  into  well-defined 
parties,  each  recognizing  and  guided  by  one  or  more  leaders,  so 
that  on  most  occasions  and  for  most  purposes  the  rank  and  file 
of  members  exert  no  volition  of  their  own,  but  move  like  bat- 
talions at  the  word  of  command.  This  has  been  the  English 
system  since  about  the  time  of  Queen  Anne.  It  was  originally 
worked  by  means  of  extensive  corruption ;  and  not  till  this 
phase  was  passing  away  did  it  become  an  object  of  admiration 
to  the  world.  Latterly  it  has  been  reproduced  in  the  parlia- 
ments of  most  modern  European  states  and  of  the  British  colo- 
nies. The  third  method,  which  admits  of  being  more  or  less 
combined  with  the  second,  is  to  divide  the  assembly  into  a 
number  of  smaller  bodies  to  which  legislative  and  administra- 
tive questions  may  be  referred,  either  for  final  determination 
or  to  be  reported  on  to  the  whole  body.  This  is  the  system  of 
committees,  applied  to  some  extent  in  England,  to  a  larger  ex- 
tent in  France  under  the  names  of  bicremix  and  commissions, 

104 


CHAP.  XV  THE   COMMITTEES   OF   CONGRESS  155 

and  most  of  all  in  the  United  States.  Some  account  of  its 
rules  and  working  there  is  essential  to  a  comprehension  of  the 
character  of  Congress  and  of  the  relations  of  the  legislative  to 
the  executive  branch  of  the  Federal  Government. 

When  Congress  first  met  in  1789,  both  Houses  found  them- 
selves, as  the  State  legislatures  had  theretofore  been  and  still 
are,  without  official  members  and  without  leaders.^  The  Senate 
occupied  itself  chiefly  with  executive  business,  and  appointed 
no  standing  committees  until  1816.  The  House  however 
had  bills  to  discuss,  plans  of  taxation  to  frame,  difficult 
questions  of  expenditure,  and  particularly  of  the  national  debt, 
to  consider.  For  want  of  persons  whose  official  duty  required 
them,  like  English  ministers,  to  run  the  machine  by  drafting 
schemes  and  bringing  the  raw  material  of  its  work  into  shape, 
it  was  forced  to  appoint  committees.  At  first  there  were  few; 
even  in  1802  we  find  only  five.  As  the  numbers  of  the  House 
increased  and  more  business  flowed  in,  additional  committees 
were  appointed;  and  as  the  House  became  more  and  more 
occupied  by  large  political  questions,  minor  matters  were  more 
and  more  left  to  be  settled  by  these  select  bodies.  Like  all 
legislatures,  the  House  constantly  sought  to  extend  its  vision 
and  its  grasp,  and  the  easiest  way  to  do  this  was  to  provide 
itself  with  new  eyes  and  new  hands  in  the  shape  of  further 
committees.  The  members  were  not,  like  their  contemporaries 
in  the  English  House  of  Commons,  well-to-do  men,  mostly  idle ; 
they  were  workers  and  desired  to  be  occupied.  It  was  impos- 
sible for  them  all  to  speak  in  the  House ;  but  all  could  talk  in 
a  committee.  Every  permanent  body  cannot  help  evolving 
some  kind  of  organization.  Here  the  choice  was  between  creat- 
ing one  ruling  committee  which  should  control  all  business,  like 
an  English  ministry,  and  distributing  business  among  a  num- 
ber of  committees,  each  of  which  should  undertake  a  special 
class  of  subjects.  The  latter  alternative  was  recommended, 
not  only  by  its  promising  a  useful  division  of  labour,  but  by 
its  recognition  of  republican  equality.  It  therefore  prevailed, 
and  the  present  elaborate  system  grew  slowly  to  maturity. 

To  avoid  the  tedious  repetition  of  details,  I  have  taken  the 

1  The  Congress  of  the  Confederation  (1781-88)  had  been  a  sort  of  diplomatic 
congress  of  envoys  from  States,  and  furnished  few  precedents  available  for 
the  Congress  under  the  new  constitution. 


156  THE   NATIONAL   GOVERNMENT  part  i 

House  of  Eepresentatives  and  its  committees  for  description, 
because  the  system  is  more  fully  developed  there  than  in  the 
Senate.  But  a  very  few  words  on  the  Senate  may  serve  to  pre- 
vent misconceptions. 

There  were  in  1892  forty-four  standing  Senate  committees, 
appointed  for  two  years,  being  the  period  of  a  Congress.^  They 
and  their  chairman  are  chosen  not  by  the  presiding  officer  but 
by  the  Senate  itself,  voting  by  ballot.  Practically  they  are 
selected  by  caucuses  of  the  majority  and  minority  meeting  in 
secret  conclave,  and  then  carried  wholesale  by  vote  in  the  Sen- 
ate. Each  consists  of  from  two  to  thirteen  members,  the  most 
common  numbers  being  seven  and  nine,  and  all  senators  sit  on 
more  than  one  committee,  some  upon  four  or  more.  The  chair- 
man is  appointed  by  the  Senate  and  not  by  the  committees 
themselves.  There  are  also  select  committees  appointed  for  a 
special  purpose  and  lasting  for  one  session  only.  Every  bill 
introduced  goes  after  its  first  and  second  reading  (which  are 
granted  as  of  course)  to  a  standing  committee,  which  examines 
and  amends  it,  and  reports  it  back  to  the  Senate. 

There  were  in  the  fifty-second  Congress  (May  1892)  fifty 
standing  committees  of  the  House,  i.e.  committees  appointed 
under  standing  regulations,  and  therefore  regularly  formed 
at  the  beginning  of  every  Congress.  Each  committee  con- 
sists of  from  three  to  sixteen  members,  eleven  and  thirteen 
being  the  commonest  numbers.  Every  member  of  the  House 
is  placed  on  some  one  committee,  not  many  on  more  than  one. 
Besides  these,  select  committees,  seldom  exceeding  ten,  on 
particular  subjects  of  current  interest  are  appointed  from  time 
to  time.  A  complete  list  of  the  committees  will  be  found  at 
the  end  of  this  chapter.  The  most  important  standing  com- 
mittees are  the  following :  —  Ways  and  means  ;  appropriations; 
elections ;  banking  and  currency ;  accounts ;  rivers  and  har- 
bours; judiciary  (including  changes  in  private  law  as  well  as 
in  courts  of  justice)  ;  railways  and  canals ;  foreign  affairs  ; 
naval  affairs ;  military  affairs ;  public  lands ;  agriculture ; 
claims ;  and  the  several  committees  on  the  expenditures  of 
the  various  departments  of  the  administration  (war,  navy,  etc.). 

1  Although  the  Senate  is  a  permanent  body,  its  proceedings  are  for  some  pur- 
poses regulated  with  reference  to  the  re-election  every  two  years  of  the  House  ;  as 
in  England  the  peers  are  sunnnoned  afresh  at  the  beginning  of  eacli  Parliament. 


CHAP.  XV  THE   COMMITTEES   OF   CONGRESS  157 

The  members  of  every  standing  committee  are  nominated 
by  the  Speaker  at  the  beginning  of  each  Congress,  and  sit 
through  its  two  sessions ;  those  of  a  select  committee  also  by 
the  Speaker,  after  the  committee  has  been  ordered  by  the 
House.  (Senate  committees  sometimes  sit  during  the  recess. ) 
The  memiier  first  named  is  chairman. 

To  some  one  of  these  standing  committees  each  and  every 
bill  is  referred.  Its  second  as  well  as  its  first  reading  is 
granted  as  of  course,  and  without  debate,  since  there  would  be 
no  time  to  discuss  the  i^nmense  number  of  bills  presented. 
When  read  a  second  time  it  is  referred  under  the  general  rules 
to  a  committee ;  but  doubts  often  arise  as  to  which  is  the  ap- 
propriate committee,  because  a  bill  may  deal  with  a  subject 
common  to  two  or  more  jurisdictions,  or  include  topics  some 
of  which  belong  to  one  jurisdiction,  others  to  another.  The 
disputes  which  may  in  such  cases  arise  between  several  com- 
mittees lead  to  keen  debates  and  divisions,  because  the  fate  of 
the  measure  may  depend  on  which  of  two  possible  paths  it  is 
made  to  take,  since  the  one  may  bring  it  before  a  tribunal  of 
friends,  the  other  before  a  tribunal  of  enemies.  Such  disputes 
are  determined  "by  the  vote  of  the  House  itself. 

Not  having  been  discussed,  much  less  affirmed  in  principle, 
by  the  House,  a  bill  comes  before  its  committee  with  no  pre- 
sumption in  its  favour,  but  rather  as  a  shivering  ghost  stands 
before  Minos  in  the  nether  world.  It  is  one  of  many,  and  for 
the  most  a  sad  fate  is  reserved.  The  committee  may  take  evi- 
dence regarding  it,  may  hear  its  friends  and  its  opponents. 
They  usually  do  hear  the  member  who  has  introduced  it,  since 
it  seldom  happens  that  he  has  himself  a  seat  on  the  committee. 
Members  who  are  interested  approach  the  committee  and  state 
their  case  there,  not  in  the  House,  because  they  know  that  the 
House  will  have  neither  time  nor  inclination  to  listen.  The 
committee  can  amend  the  bill  as  they  please,  and  although 
they  cannot  formally  extinguish  it,  they  can  practically  do  so 
by  reporting  adversely,  or  by  delaying  to  report  it  till  late  in 
the  session,  or  by  not  reporting  it  at  all. 

In  one  or  other  of  these  ways  nineteen-twentieths  of  the 
bills  introduced  meet  their  death,  a  death  which  the  majority 
doubtless  deserve,  and  the  prospect  of  which  tends  to  make 
members  reckless  as  regards  both  the  form  and  the  substance 


158  THE    NATIONAL    GOVERNMENT  part  i 

of  their  proposals.  A  motion  may  be  made  in  the  House  that 
the  committee  do  report  forthwith,  and  the  House  can  of 
course  restore  the  bill,  when  reported,  to  its  original  form. 
But  these  expedients  rarely  succeed,  for  few  are  the  measures 
Avhich  excite  sufficient  interest  to  induce  an  impatient  and 
over-burdened  assembly  to  take  additional  work  upon  its  own 
shoulders  or  to  overrule  the  decision  of  a  committee. 

The  deliberations  of  committees  are  usually  secret.  Evi- 
dence is  frequently  taken  with  open  doors,  but  the  newspapers 
do  not  report  it,  unless  the  matter  excite  j^ublic  interest ;  and 
even  the  decisions  arrived  at  are  often  noticed  in  the  briefest 
Avay.  It  is  out  of  order  to  canvass  the  proceedings  of  a  com- 
mittee in  the  House  until  they  have  been  formally  reported  to 
it ;  and  the  report  submitted  does  not  usually  state  how  the 
members  have  voted,  or  contain  more  than  a  very  curt  outline 
of  what  has  passed.  No  member  speaking  in  the  House  is 
entitled  to  reveal  anything  further. 

A  committee  have  technically  no  right  to  initiate  a  bill,  but 
as  they  can  either  transform  one  referred  to  them,  or,  if  none 
has  been  referred  which  touches  the  subject  they  seek  to  deal 
with,  can  procure  one  to  be  brought  in  and  referred  to  them, 
their  command  of  their  own  province  is  unbounded.  Hence 
the  character  of  all  the  measures  that  may  be  passed  or  even 
considered  by  the  House  upon  a  particular  branch  of  legisla- 
tion depends  on  the  composition  of  the  committee  concerned 
with  that  branch.  Some  committees,  such  as  those  on  naval 
and  military  affairs,  and  those  on  the  expenditure  of  the  sev- 
eral departments,  deal  with  administration  rather  than  leg- 
islation. They  have  power  to  summon  the  officials  of  the 
departments  before  them,  and  to  interrogate  them  as  to  their 
methods  and  conduct.  Authority  they  have  none,  for  officials 
are  responsible  only  to  their  chief,  the  President;  but  the 
power  of  questioning  is  sufficient  to  check  if  not  to  guide  the 
action  of  a  department,  since  imperative  statutes  may  follow, 
and  the  department,  sometimes  desiring  legislation  and  always 
desiring  money,  has  strong  motives  for  keeping  on  good  terms 
with  those  who  control  legislation  and  the  purse.  It  is 
through  these  committees  chiefly  that  the  executive  and  legis- 
lative branches  of  government  touch  one  another.  Yet  the 
contact,  although  the  most  important  thing  in  a  government, 


CHAP.  XV  THE   COMMITTEES   OF   CONGRESS  159 

is  the  thing  which  the  nation  least  notices,  and  has  the  scant- 
iest means  of  watching. 

The  scrutiny  to  which  the  administrative  committees  subject 
the  departments  is  so  close  and  constant  as  to  occupy  much 
of  the  time  of  the  officials  and  seriously  interfere  with  their 
duties.  Not  only  are  they  often  summoned  to  give  evidence : 
they  are  required  to  furnish  minute  reports  on  matters  which 
a  member  of  Congress  could  ascertain  for  himself.  Neverthe- 
less the  House  committees  are  not  certain  to  detect  abuses  or 
peculation,  for  special  committees  of  the  Senate  have  repeatedly 
unearthed  dark  doings  which  had  passed  unsuspected  the  ordeal 
of  a  House  investigation.  After  a  bill  has  been  debated  and 
amended  by  the  committee  it  is  reported  back  to  the  House, 
and  is  taken  up  when  that  committee  is  called  in  its  order. 
One  hour  is  allowed  to  the  member  whom  his  fellow  committee- 
men have  appointed  to  report.  He  seldom  uses  the  whole  of 
this  hour,  but  allots  part  of  it  to  other  members,  opponents 
as  well  as  friends,  and  usually  concludes  by  moving  the  pre- 
vious question.  This  precludes  subsequent  amendments  and 
leaves  only  an  hour  before  the  vote  is  taken.  As  on  an 
average  each  committee  (excluding  the  two  or  three  great 
ones)  has  only  two  hours  out  of  the  whole  ten  months  of 
Congress  allotted  to  it  to  present  and  have  discussed  all  its 
bills,  it  is  plain  that  few  measures  can  be  considered,  and  each 
but  shortly,  in  the  House.  The  best  chance  of  pressing  one 
through  is  under  the  rule  which  permits  the  suspension  of 
standing  orders  by  a  two-thirds  majority  during  the  last  six 
days  of  the  session. 

What  are  the  results  of  this  system? 

It  destroys  the  unity  of  the  House  as  a  legislative  body. 
Since  the  practical  work  of  shaping  legislation  is  done  in  the 
committees,  the  interest  of  members  centres  there,  and  they 
care  less  about  the  proceedings  of  the  whole  body.  It  is  as  a 
committee-man  that  a  member  does  his  real  work.  In  fact  the 
House  has  become  not  so  much  a  legislative  assembly  as  a 
huge  panel  from  which  committees  are  selected. 

It  prevents  the  capacity  of  the  best  members  from  being 
brought  to  bear  upon  any  one  piece  of  legislation,  however  im- 
portant. The  men  of  most  ability  and  experience  are  chosen 
to  be  chairmen  of  the  committees,  or  to  sit  on  the  two  or  three 


160  THE   NATIONAL   GOVERNMENT  part  i 

greatest.  For  other  committees  there  remains  only  the  rank 
and  file  of  the  House,  a  rank  and  file  half  of  which  is  new 
at  the  beginning  of  each  Congress.  Hence  every  committee 
(except  the  aforesaid  two  or  three)  is  composed  of  ordinary 
persons,  and  it  is  impossible,  save  by  creating  a  special  select 
committee,  to  get  together  what  would  be  called  in  England  "a 
strong  committee,"  i.e.  one  where  half  or  more  of  the  members 
are  exceptionally  capable.  The  defect  is  not  supplied  by  dis- 
cussion in  the  House,  for  there  is  no  time  for  such  discussion. 

It  cramps  debate.  Every  foreign  observer  has  remarked 
how  little  real  debate,  in  the  European  sense,  takes  place  in 
the  House  of  Representatives.  The  very  habit  of  debate,  the 
expectation  of  debate,  the  idea  that  debate  is  needed,  have 
vanished,  except  as  regards  questions  of  revenue  and  expendi- 
ture, because  the  centre  of  gravity  has  shifted  from  the  House 
to  the  committees. 

It  lessens  the  cohesion  and  harmony  of  legislation.  Each 
committee  goes  on  its  own  way  with  its  own  bills  just  as 
though  it  were  legislating  for  one  planet  and  the  other  com- 
mittees for  others.  Hence  a  want  of  policy  and  method  in 
congressional  action.  The  advance  is  haphazard ;  the  parts 
have  little  relation  to  one  another  or  to  the  whole. 

It  gives  facilities  for  the  exercise  of  underhand  and  even 
corrupt  influence.  In  a  small  committee  the  voice  of  each 
member  is  well  worth  securing,  and  may  be  secured  with  little 
danger  of  a  public  scandal.  The  press  cannot,  even  when  the 
doors  of  committee  rooms  stand  open,  report  the  proceedings 
of  fifty  bodies ;  the  eye  of  the  nation  cannot  follow  and  mark 
what  goes  on  within  them  ;  while  the  subsequent  proceedings 
in  the  House  are  too  hurried  to  permit  a  ripping  up  there  of 
suspicious  bargains  struck  in  the  purlieus  of  the  Capitol,  and 
fulfilled  by  votes  given  in  a  committee.  I  do  not  think  that 
corruption,  in  its  grosser  forms,  is  rife  at  Washington.  It 
appears  chiefly  in  the  milder  form  of  reciprocal  jobbing  or  (as 
it  is  called)  "  log-rolling."  But  the  arrangements  of  the  com- 
mittee system  have  produced  and  sustain  the  class  of  profes- 
sional "lobbyists,"  men,  and  women  too,  who  make  it  their 
business  to  "see"  members  and  procure,  by  persuasion,  impor- 
tunity, or  the  use  of  inducements,  the  passing  of  bills,  public 
as  well  as  private,  which  involve  gain  to  their  promoters. 


CHAP.  XV  THE   COMMITTEES   OF   CONGRESS  161 

It  reduces  responsibility.  In  England,  if  a  bad  Act  is 
passed  or  a  good  bill  rejected,  the  blame  falls  primarily  upon 
the  ministry  in  power  whose  command  of  the  majority  would 
have  enabled  them  to  defeat  it,  next  upon  the  party  which 
supjoorted  the  ministry,  then  upon  the  individual  members 
who  are  officially  recorded  to  have  "  backed  "  it  and  voted  for 
it  in  the  House.  The  fact  that  a  select  committee  recom- 
mended it  —  and  comparatively  few  bills  pass  through  a  select 
committee  —  would  not  be  held  to  excuse  the  default  of  the 
ministry  and  the  majority.  But  in  the  United  States  the 
ministry  cannot  be  blamed,  for  the  cabinet  officers  do  not  sit 
in  Congress ;  the  House  cannot  be  blamed  because  it  has  only 
followed  the  decision  of  its  committee ;  the  committee  may  be 
an  obscure  body,  whose  members  are  too  insignificant  to  be 
worth  blaming.  The  chairman  is  possibly  a  man  of  note,  but 
the  people  have  no  leisure  to  watch  fifty  chairmen  :  they  know 
Congress  and  Congress  only ;  they  cannot  follow  the  acts  of 
those  to  whom  Congress  chooses  to  delegate  its  functions. 
No  discredit  attaches  to  the  dominant  party,  because  they 
could  not  control  the  acts  of  the  eleven  men  in  the  committee 
room.  Thus  public  displeasure  rarely  finds  a  victim,  and 
everybody  concerned  is  relieved  from  the  wholesome  dread 
of  damaging  himself  and  his  party  by  negligence,  perversity, 
or  dishonesty.  Only  when  a  scandal  has  arisen  so  serious  as 
to  demand  investigation  is  the  responsibility  of  the  member 
to  his  constituents  and  the  country  brought  duly  home. 

It  lowers  the  interest  of  the  nation  in  the  proceedings  of 
Congress.^  Except  in  exciting  times,  when  large  questions 
have  to  be  settled,  the  bulk  of  real  business  is  done  not  in  the 
great  hall  of  the  House  but  in  this  labyrinth  of  committee 
rooms  and  the  lobbies  that  surround  them.     What  takes  place 

1  "  The  doubt  and  confusion  of  thouglit  wliich  must  necessarily  exist  in  the 
minds  of  the  vast  majority  of  voters  as  to  the  best  way  of  exerting  their  will 
in  influencing  the  action  of  an  assembly  whose  organization  is  so  comjjlex, 
whose  acts  are  apparently  so  haphazard,  and  in  which  responsibility  is  spread 
so  thin,  throws  constituencies  into  the  hands  of  local  politicians  who  are  more 
visible  and  tangible  than  are  the  leaders  of  Congress,  and  generates  the  while 
a  profound  distrust  of  Congress  as  a  body  whose  actions  cannot  be  reckoned 
beforehand  by  any  standard  of  promises  made  at  elections  or  any  programmes 
announced  by  conventions."  —  Woodrow  Wilson.  Congressional  Government, 
a  thoughtful  book  from  which  I  have  derived  much  help  in  this  and  the  two 
following  chapters. 

VOL.  I  M 


162  THE   NATIONAL   GOVERNMENT  part  i 

in  view  of  the  audience  is  little  more  tlian  a  sanction,  formal 
indeed  but  hurried  and  often  heedless,  of  decisions  procured 
behind  the  scenes,  whose  mode  and  motives  remain  undisclosed. 
Hence  people  cease  to  watch  Congress  with  that  sharp  eye 
which  every  principal  ought  to  keep  fixed  on  his  agent.  Acts 
pass  unnoticed,  whose  results  are  in  a  few  months  discovered 
to  be  so  grave  that  the  newspapers  ask  how  it  happened  that 
they  were  allowed  to  pass. 

The  country  of  course  suffers  from  the  want  of  the  light  and 
leading  on  public  affairs  which  debates  in  Congress  ought  to 
supply.  But  this  is  more  fairly  chargeable  to  defects  of  the 
House  which  the  committees  are  designed  to  mitigate  than  to  the 
committees  themselves.  The  time  which  the  committee  work 
leaves  for  the  sittings  of  the  House  is  long  enough  to  permit 
due  discussion  did  better  arrangements  exist  for  conducting  it. 

It  throws  power  into  the  hands  of  the  chairmen  of  commit- 
tees, especially,  of  course,  of  those  which  deal  with  finance  and 
with  great  material  interests.  They  become  practically  a 
second  set  of  ministers,  before  whom  the  departments  tremble, 
and  who,  though  they  can  neither  appoint  nor  dismiss  a  post- 
master or  a  tide-waiter,  can  by  legislation  determine  the  policy 
of  the  branch  of  administration  which  they  oversee.  This 
power  is  not  necessarily  accompanied  by  responsibility,  because 
it  is  largely  exercised  in  secret. 

It  enables  the  House  to  deal  with  a  far  greater  number  of 
measures  and  subjects  than  could  otherwise  be  overtaken ;  and 
has  the  advantage  of  enabling  evidence  to  be  taken  by  those 
whose  duty  it  is  to  re-shape  or  amend  a  bill.  It  replaces  the 
system  of  interrogating  ministers'in  the  House  which  prevails 
in  most  European  chambers ;  and  enables  the  working  of  the 
administrative  departments  to  be  minutely  scrutinized. 

It  sets  the  members  of  the  House  to  work  for  which  their 
previous  training  has  fitted  them  much  better  than  for  either 
legislating  or  debating  "  in  the  grand  style."  They  are  shrewd, 
keen  men  of  business,  apt  for  talk  in  committee,  less  apt  for 
wide  views  of  policy  and  elevated  discourse  in  an  assembly. 
The  committees  are  therefore  good  working  bodies,  but  bodies 
which  confirm  congressmen  in  the  intellectual  habits  they  bring 
with  them  instead  of  raising  them  to  the  higher  platform  of 
national  questions  and  interests. 


CHAP.  XV  THE    COMMITTEES   OF   CONGRESS  163 

Summing  up,  we  may  say  that  under  this  system  the  House 
despatches  a  vast  amount  of  work  and  does  the  negative  part 
of  it,  the  killing  off  of  worthless  bills,  in  a  thorough  way. 
Were  the  committees  abolished  and  no  other  organization  sub- 
stituted, the  work  could  not  be  done.  But  much  of  it,  includ- 
ing most  of  the  private  bills,  ought  not  to  come  before  Congress 
at  all ;  and  the  more  important  part  of  what  remains,  viz.  pub- 
lic legislation,  is  dealt  with  by  methods  which  secure  neither 
the  pressing  forward  of  the  measures  most  needed,  nor  the  due 
debate  of  those  that  are  pressed  forward. 

Why,  if  these  mischiefs  exist,  is  the  system  of  committee 
legislation  maintained  ? 

It  is  maintained  because  none  better  has  been,  or,  as  most 
people  think,  can  be  devised.  "  We  have,"  say  the  Americans, 
"  three  hundred  and  fifty-six  members  in  the  House,  most  of 
them  eager  to  speak,  nearly  all  of  them  giving  constant  attend- 
ance. The  bills  brought  in  are  so  numerous  that  in  our  two 
sessions,  one  of  seven  or  eight  months,  the  other  of  three  months, 
not  one-twentieth  could  be  fairly  discussed  on  second  reading  or 
in  committee  of  the  Whole.  If  even  this  twentieth  were  dis- 
cussed, no  time-  would  remain  for  supervision  of  the  depart- 
ments of  State.  That  supervision  itself  must,  since  it  involves 
the  taking  of  evidence,  be  conducted  through  committees.  In 
England  one  large  and  strong  committee,  viz.  the  ministry  of 
the  day,  -undertakes  all  the  more  importaiit  business,  and 
watches  even  the  bills  of  private  members.  Your  House  of 
Commons  could  not  work  for  a  single  sitting  without  such  a 
committee,  as  is  proved  by  the  fact  that  when  you  are  left  for 
a  little  without  a  ministry,  the  House  adjourns.  We  cannot 
have  such  a  committee,  because  no  office-holder  sits  in  Congress. 
Neither  can  we  organize  the  House  under  leaders,  because  prom- 
inent men  have  among  us  little  authority,  since  they  are  uncon- 
nected with  the  executive,  and  derive  no  title  from  the  people.' 

1  In  England  the  prime  minister  and  the  leader  of  the  Opposition  (often  an 
ex-prime  minister)  have  been  recognized  as  leaders  not  only  by  the  candidates 
who  at  the  last  preceding  general  election  have  declared  their  willingness  to 
supi^ort  one  or  other,  but  also  by  the  rank  and  file  of  their  respective  parties. 
These  leaders  have  thus  a  sort  of  right  to  the  allegiance  of  their  followers, 
though  a  right  which  they  may  forfeit.  In  America  no  candidate  pledges 
himself  to  support  a  particular  congressional  leader.  It  would  be  thought 
unbecoming  in  him  to  do  so.  His  allegiance  is  to  the  party,  and  his  constitu- 
ents do  not  expect  him  to  support  any  given  person,  however  eminent. 


164  THE   NATIONAL   GOVERNMENT  part  i 

Neither  can  we  create  a  ruling  committee  of  the  majority, 
because  this  would  be  disliked  as  an  undemocratic  and  tyran- 
nical institution.  Hence  our  only  course  is  to  divide  the  un- 
wieldy multitude  into  small  bodies  capable  of  dealing  with 
particular  subjects.  Each  of  them  is  no  doubt  powerful  in 
its  own  sphere,  but  that  sphere  is  so  small  that  no  grave 
harm  can  result.  The  Acts  passed  may  not  be  the  best  possi- 
ble ;  the  legislation  of  the  year  may  resemble  a  patchwork 
quilt,  where  each  piece  is  different  in  colour  and  texture  from 
the  rest.  But  as  we  do  not  need  much  legislation,  and  as 
nearly  the  whole  field  of  ordinary  private  law  lies  outside  the 
province  of  Congress,  the  mischief  is  slighter  than  you  Euro- 
peans expect.  If  we  made  legislation  easier,  we  might  have 
too  much  of  it ;  and  in  trying  to  give  it  the  more  definite  char- 
acter you  suggest,  we  might  make  it  too  bold  and  sweeping. 
Be  our  present  system  bad  or  good,  it  is  the  only  system  possi- 
ble under  our  Constitution,  and  the  fact  that  it  was  not  directly 
created  by  that  instrument,  but  has  been  evolved  by  the  ex- 
perience of  a  hundred  years,  shows  how  strong  must  be  the 
tendencies  whose  natural  working  has  produced  it." 

NOTE   TO   CHAPTER   XV. 

List  of  Standing  and  Select  Committees  of  the  House  in  the  Fifty- 
second  Congress,  First  Session.     (Corrected  to  May  7,  1892.) 

On  Ways  and  Means  ;  Appropriations  ;  Judiciary  ;  Banking  and  Cur- 
rency ;  Coinage,  Weights  and  Measures  ;  Commerce  ;  Rivers  and  Har- 
bours ;  Merchant  Marine  and  Fisheries  ;  Agi'iculture  ;  Elections  ;  Foreign 
Affairs ;  Military  Affairs  ;  Naval  Affairs ;  Post  Ofldce  and  Post  Roads  ; 
Public  Lands  ;  Indian  Affairs  ;  Territories  ;  Railways  and  Canals  ;  Manu- 
factures ;  Mines  and  Mining ;  Public  Buildings  and  Grounds  ;  Pacific 
Railroads ;  Levees  and  Improvements  of  the  Mississippi  River ;  Educa- 
tion ;  Labour  ;  Militia  ;  Patents  ;  Invalid  Pensions  ;  Pensions  ;  Claims  ; 
War  Claims  ;  Private  Land  Claims ;  District  of  Columbia ;  Revision  of 
the  Laws  ;  Expenditures  in  the  State  Department  ;  Do.,  Treasury  Depart- 
ment;  Do.,  War  Department;  Do.,  Navy  Department;  Do.,  Post  Office 
Department;  Do.,  Interior  Department;  Do.,  Department  of  Justice; 
Do.,  Agriculture;  Do.,  Public  Buildings;  Rules;  Accounts;  Mileage; 
Library  ;  Printing  ;  Enrolled  Bills  :  Select  Committees  —  Reform  in  the 
Civil  Service  ;  Election  of  President  and  Vice-President ;  Eleventh  Census  ; 
Ventilation  and  Acoustics  ;  Alcoholic  Liquor  Traffic  ;  Irrigation  of  Arid 
Lands ;  Immigration  and  Naturalization  ;  Columbian  Exposition  ;  Inves- 
tigation of  the  Management  of  the  Pension  Office ;  Investigation  of  Tax 
Assessments  in  the  District  of  Columbia. 


CHAPTER   XVI 

CONGRESSIONAL    LEGISLATION 

Legislation  is  more  specifically  and  exclusively  the  busi- 
ness of  Congress  than  it  is  the  business  of  governing  parlia- 
ments such  as  those  of  England,  France,  and  Italy.  We  must 
therefore,  in  order  to  judge  of  the  excellence  of  Congress  as  a 
working  machine,  examine  the  quality  of  the  legislation  which 
it  turns  out. 

Acts  of  Congress  are  of  two  kinds,  public  and  private.  Pass- 
ing by  private  acts  for  the  present,  though  they  occupy  a  large 
part  of  congressional  time,^  let  us  consider  public  acts.  These 
are  of  two  kinds,  those  which  deal  with  the  law  or  its  administra- 
tion, and  those  which  deal  with  finance,  that  is  to  say,  provide 
for  the  raising  and  application  of  revenue.  I  devote  this  chap- 
ter to  the  former  class,  and  the  next  to  the  latter. 

There  are  many  points  of  view  from  which  one  may  regard 
the  work  of  legislation.  I  suggest  a  few  only,  in  respect  of 
which  the  excellence  of  the  work  may  be  tested  ;  and  propose 
to  ask  :  What  security  do  the  legislative  methods  and  habits 
of  Congress  offer  for  the  attainment  of  the  following  desirable 
objects  ?  viz. :  — 

1.  The  excellence  of  the  substance  of  a  bill,  i.e.  its  tendency 
to  improve  the  law  and  promote  the  public  welfare. 

2.  The  excellence  of  the  form  of  a  bill,  i.e.  its  arrangement 
and  the  scientific  precision  of  its  language. 

3.  The  harmony  and  consistency  of  an  act  with  the  other 
acts  of  the  same  session. 

4.  The  due  examination  and  sifting  in  debate  of  a  bill. 

5.  The  publicity  of  a  bill,  i.e.  the  bringing  it  to  the  knowl- 
edge of  the  country  at  large,  so  that  public  opinion  may  be 
fully  expressed  regarding  it. 

1  Some  remarks  on  private  bills  will  be  found  in  Note  A  to  this  chapter  at 
the  end  of  this  volume. 


166  THE   NATIONAL   GOVERNMENT  part  i 

6.  The  honesty  and  courage  of  the  legislative  assembly  in 
rejecting  a  bill,  however  likely  to  be  popular,  which  their  judg- 
ment disapproves. 

7.  The  responsibility  of  some  person  or  body  of  persons  for 
the  enactment  of  a  measure,  i.e.  the  fixing  on  the  right  shoul- 
ders of  the  praise  for  passing  a  good,  the  blame  for  passing 
a  bad,  act. 

The  criticisms  that  may  be  passed  on  American  practice 
under  the  preceding  heads  will  be  made  clearer  by  a  compari- 
son of  English  practice.  Let  us  therefore  first  see  how  English 
bills  and  acts  stand  the  tests  we  are  to  apply  to  the  work  of 
Congress. 

In  England  public  bills  fall  into  two  classes,  —  those  brought 
in  by  the  ministry  of  the  day  as  responsible  advisers  of  the 
sovereign,  and  those  brought  in  by  priv^ate  members.  In  point 
of  law  and  in  point  of  form  there  is  no  difference  between  these 
classes.  Practically  there  is  all  the  difference  in  the  world, 
because  a  government  bill  has  behind  it  the  responsibility  of 
the  ministry,  and  presumably  the  weight  of  the  majority  which 
keeps  the  ministry  in  office.  The  ministry  dispose  of  a  half  or 
more  of  the  working  time  of  the  House,  and  have  therefore 
much  greater  facilities  for  pushing  forward  their  bills.  Nearly 
all  the  most  important  bills,  which  involve  large  political  issues, 
are  government  bills,  so  that  the  hostile  critic  of  a  private  mem- 
ber's bill  will  sometimes  argue  that  the  House  ought  not  to  per- 
mit the  member  to  proceed  with  it,  because  it  is  too  large  for 
any  unofficial  hands.  This  premised,  we  may  proceed  to  the 
seven  points  above  mentioned. 

1.  In  England,  as  the  more  important  bills  are  government 
bills,  their  policy  is  sure  to  have  been  carefully  weighed.  The 
ministry  have  every  motive  for  care,  because  the  fortunes  of  a 
first-class  bill  are  their  own  fortunes.  If  it  is  rejected,  they  fall. 
A  specially  difficult  bill  is  usually  framed  by  a  committee  of  the 
cabinet,  and  then  debated  by  the  cabinet  as  a  whole  before  it 
appears  in  Parliament.  Minor  bills  are  settled  in  the  depart- 
ments by  the  parliamentary  head  with  his  staff  of  permanent 
officials. 

2.  In  England,  government  bills  are  prepared  by  the  official 
government  draftsmen,  two  eminent  lawyers  with  several 
assistants,  w^ho  constitute  an  office  for  this  purpose.     Private 


CHAP.  XVI  CONGRESSIONAL  LEGISLATION  167 

nieuibers  who  are  lawyers  often  draft  tlieir  own  bills  ;  those 
who  are  not  generally  employ  a  barrister.  The  drafting  of 
government  bills  has  improved  of  late  years,  and  the  faults  of 
form  still  observable  in  British  Acts  are  chiefly  due  to  amend- 
ments made  hurriedly  in  committee  of  the  whole  House. 

3.  The  harmony  of  one  government  bill  with  others  of  the 
same  session  is  secured  by  the  care  of  the  official  draftsmen,  as 
well  as  by  the  fact  that  all  emanate  from  one  and  the  same 
ministry.  No  such  safeguards  exist  in  the  case  of  private 
members'  bills,  but  it  is  of  course  the  duty  of  the  ministry  to 
watch  these  legislative  essays,  and  get  Parliament  to  strike 
out  of  any  one  of  them  whatever  is  inconsistent  with  another 
measure  passed  or  intended  to  be  passed  in  the  same  session. 

4.  Difficult  and  complicated  bills  which  raise  no  political 
controversy  are  sometimes  referred  to  a  select  committee,  which 
goes  through  them  and  reports  them  as  amended  to  the  House. 
They  are  afterwards  considered,  first  in  committee  of  the  Whole, 
and  then  by  the  House  on  the  stage  of  report  from  committee 
of  the  Whole  to  the  House.  Such  bills  are  now  often  referred 
to  what  are  called  Grand  Committees,  i.e.  committees  of  at 
least  fifty  appointed  in  each  session  for  the  consideration  of 
particular  kinds  of  business,  discussion  in  which  replaces  the 
discussion  in  committee  of  the  Whole.  Many  bills,  however, 
never  go  before  select  or  grand  committees.  While  measures 
which  excite  political  feeling  or  toiich  any  powerful  interest 
(such  as  that  of  landowners  or  railroads  or  liquor-dealers)  are 
exhaustively  debated,  others  may  slip  through  unobserved. 
The  enormous  pressure  of  work  and  the  prolixity  with  which 
some  kinds  of  business  are  discussed,  involve  the  hurrying  other 
business  through  with  scant  consideration. 

5.  Except  in  the  case  of  discussions  at  unseasonable  hours, 
the  proceedings  of  Parliament  are  so  far  reported  in  the  lead- 
ing newspapers  and  commented  on  by  them  that  bills,  even 
those  of  private  members,  generally  become  known  to  those 
whom  they  may  concern.  There  is  usually  a  debate  on  the 
second  reading,  and  this  debate  attracts  notice. 

6.  A  government  bill  is,  by  the  law  of  its  being,  exposed  to 
the  hostile  criticism  of  the  Opposition,  who  have  an  interest 
in  discrediting  the  ministry  by  disparaging  their  work.  As  re- 
spects private  meinbers'  bills,  it  is  the  undoubted  duty  of  some 


168  THE   NATIONAL   GOVERNMENT  part  i 

minister  to  watch  them,  and  to  procure  their  amendment  or  re- 
jection if  he  iinds  them  faulty.  This  duty  is  discharged  less 
faithfully  than  might  be  wished,  but  perhaps  as  well  as  can  be 
expected  from  weak  hiuuan  nature,  often  tempted  to  conciliate 
a  supporter  or  an  '•  interest "  by  allowing  a  measure  to  go 
through  which  ought  to  have  been  stopped. 

7.  Eesponsibility  for  everything  done  in  the  House  rests 
upon  the  ministry  of  the  day,  because  they  are  the  leaders  of 
the  majority.  If  they  allow  a  private  member  to  pass  a 
bad  bill,  if  they  stop  him  when  trying  to  pass  a  good  bill, 
they  are  in  theory  no  less  culpable  than  if  thej  pass  a  bad 
bill  of  their  own.  Accordingly,  when  the  second  reading  of  a 
measure  of  consequence  is  moved,  it  is  the  duty  of  some  member 
of  the  ministry  to  rise,  with  as  little  delay  as  possible,  and 
state  whether  the  ministry  support  it,  or  oppose  it,  or  stand 
neutral.  Standing  neutral  is,  so  far  as  responsibility  to  the 
coimtry  goes,  practically  the  same  thing  as  supporting.  The 
Opposition,  as  an  organized  body,  are  not  expected  to  express 
their  opinion  on  any  bills  except  those  of  high  political  import. 
Needless  to  say,  private  members  are  also  held  strictly  respon- 
sible for  the  votes  they  give,  these  votes  bemg  all  recorded  and 
published  next  morning.  Of  course  both  parties  claim  praise 
or  receive  blame  from  the  country  in  respect  of  their  attitude 
towards  bills  of  moment,  and  when  a  session  has  produced  few 
or  feeble  Acts  the  Opposition  charge  the  jNIinistry  with  sloth 
or  incompetence. 

The  rules  and  usages  I  have  described  constitute  vali;able 
aids  to  legislation,  and  the  quality  of  English  and  Scottish 
legislation,  take  it  all  and  all,  is  good ;  that  is  to  sa}^,  the  stat- 
utes are  such  as  public  opinion  (whether  rightly  or  wrongly) 
demands,  and  are  well  drawn  for  the  purposes  they  aim  at. 

Let  us  now  apply  the  same  test  to  the  legislation  of  Con- 
gress. What  follows  refers  primarily  to  the  House,  but  is 
largely  true  of  the  Senate,  because  in  the  Senate  also  the  com- 
mittees play  an  important  part. 

In  neither  House  of  Congress  are  there  any  government 
bills.  All  measures  are  brought  in  by  private  members  be- 
cause all  members  are  private.  The  nearest  approach  to  the 
government  bill  of  England  is  one  brought  in  by  a  leading 
member  of  the  majority  in  pursuance  of  a  resolution  taken  in 


CHAP.  XVI  CONGRESSIONAL   LEGISLATION  169 


the  congressional  caucus  of  that  majority.  This  seldom  hap- 
pens. One  must  therefore  compare  the  ordinary  congressional 
bill  with  the  English  private  member's  bill  rather  than  with  a 
government  measure,  and  expect  to  find  it  marked  by  the 
faults  that  mark  the  former  class.  The  second  difference  is 
that  whereas  in  England  the  criticism  and  amendment  of  a 
bill  takes  place  in  committee  of  the  Whole,  in  the  House  of 
Eepresentatives  it  takes  place  in  a  small  committee  of  sixteen 
members  or  less,  usually  of  eleven.  In  the  Senate  also  the 
committees  do  most  of  the  work,  but  the  committee  of  the 
Whole  occasionally  debates  a  bill  pretty  fully. 

Premising  these  dissimilarities,  I  go  to  the  seven  points 
before  mentioned. 

1.  The  excellence  of  the  substance  of  a  bill  introduced  in 
Congress  depends  entirely  on  the  wisdom  and  care  of  its  in- 
troducer. He  may,  if  self-distrustful,  take  counsel  with  his 
political  allies  respecting  it.  But  there  is  no  security  for  its 
representing  any  opinion  or  knowledge  but  his  own.  It  may 
affect  the  management  of  an  executive  department,  but  the 
introducing  member  does  not  command  departmental  informa- 
tion, and  will,  if  the  bill  passes,  have  nothing  to  do  with  the 
carrying  out  of  its  provisions.  On  the  other  hand,  the  of&cials 
of  the  government  cainiot  submit  bills  ;  and  if  they  find  a 
congressman  willing  to  do  so  for  them,  must  leave  the  advo- 
cacy and  conduct  of  the  measure  entirely  in  his  hands. 

2.  The  drafting  of  a  measure  depends  on  the  pains  taken 
and  skill  exerted  by  its  author.  Senate  bills  are  usually  well 
drafted  because  many  senators  are  experienced  lawyers : 
House  bills  are  often  crude  and  obscure.  There  does  not 
exist  either  among  the  executive  departments  or  in  connection 
Avith  Congress,  any  legal  office  charged  with  the  duty  of  pre- 
paring bills,  or  of  seeing  that  the  form  in  which  they  pass  is 
technically  satisfactory. 

3.  The  only  security  for  the  consistency  of  the  various 
measures  of  the  same  session  is  to  be  found  in  the  fact  that 
those  which  affect  the  same  matter  ought  to  be  referred  to  the 
same  committee.  However,  it  often  happens  that  there  are 
two  or  more  committees  whose  spheres  of  jurisdiction  overlap, 
so  that  of  two  bills  handling  cognate  matters,  one  may  go  to 
Committee  A  and  the  other  to  Committee  B.     Should  different 


170  THE   NATIONAL   GOVERNMENT  part  i 

views  of  policy  prevail  in  these  two  bodies,  they  may  report 
to  the  House  bills  containing  mutually  repugnant  provisions. 
There  is  nothing  except  unusual  vigilance  on  the  part  of  some 
member  interested,  to  prevent  both  bills  from  passing.  That 
mischief  from  this  cause  is  not  serious  arises  from  the  fact 
that  out  of  the  multitude  of  bills  introduced,  few  are  reported 
and  still  fewer  become  law. 

4.  The  function  of  a  committee  of  either  House  of  Congress 
extends  not  merely  to  the  sifting  and  amending  of  the  bills 
referred  to  it,  but  to  practically  re-drawing  them,  if  the  com- 
mittee desires  any  legislation,  or  rejecting  them  by  omitting  to 
report  them  till  near  the  end  of  the  session  if  it  thinks  no  leg- 
islation .needed.  Every  committee  is  in  fact  a  small  bureau,  of 
legislation  for  the  matters  lying  within  its  jurisdiction.  It 
has  for  this  purpose  the  advantage  of  time,  of  the  right  to 
take  evidence,  and  of  the  fact  that  some  of  its  members  have 
been  selected  from  their  knowledge  of  or  interest  in  the  topics 
it  has  to  deal  with.  On  the  other  hand,  it  suffers  from  the 
non-publication  of  its  debates,  and  from  the  tendency  of  all 
small  and  secret  bodies  to  intrigues  and  compromises,  compro- 
mises in  which  general  principles  of  policy  are  sacrificed  to 
personal  feeling  or  selfish  interest.  Bills  which  go  in  black 
or  white  come  out  gray.  They  may  lose  all  their  distinctive 
colour ;  or  they  may  be  turned  into  a  medley  of  scarcely  consist- 
ent provisions.  The  memljer  who  has  introduced  a  bill  may 
not  have  a  seat  on  the  comanittee,  and  may  therefore  be  unable 
to  protect  his  offspring.  Other  members  of  the  House,  masters 
of  the  subject  but  not  members  of  the  committee,  can  only  be 
heard  as  witnesses.  Although  therefore  there  are  full  ojjpor- 
tunities  for  the  discussion  of  the  bill  by  the  committee,  it  often 
emerges  in  an  unsatisfactory  form,  or  is  quietly  suppressed, 
because  there  is  no  impetus  of  the  general  opinion  of  the  House 
or  the  public  to  push  it  through.  When  the  bill  comes  back  to 
the  House  the  chairman  or  other  reporting  member  of  the  com- 
mittee generally  moves  the  previous  question,  after  which  no 
amendment  can  be  offered.  Debate  ceases  and  the  bill  is 
promptly  passed  or  lost.  In  the  Senate  there  is  a  better  chance 
of  discussion,  for  the  Senate,  having  more  time  and  fewer 
speakers,  can  review  to  some  real  purpose  the  findings  of  its 
committees. 


CHAP.  XVI  CONGKESSIONAL   LEGISLATION  171 

5.  As  there  is  no  debate  on  the  introduction  or  on  the  second 
reading  of  a  bill,  the  public  is  not  necessarily  apprised  of  the 
measures  which  are  before  Congress.  An  important  measure 
is  of  course  watched  by  the  newspapers  and  so  becomes  known : 
minor  measures  go  unnoticed. 

6.  The  general  good-nature  of  Americans,  and  the  tendency 
of  members  of  their  legislatures  to  oblige  one  another  by  doing 
reciprocal  good  turns,  dispose  people  to  let  any  bill  go  through 
which  does  not  injure  the  interest  of  a  party  or  of  a  person. 
Such  good-nature  counts  for  less  in  a  committee,  because  a 
committee  has  its  own  views  and  gives  effect  to  them.  But  in 
the  House  there  are  few  views,  though  much  impatience.  The 
House  has  no  time  to  weigh  the  merits  of  a  bill  reported  back 
to  it.  Members  have  never  heard  it  debated.  They  know  no 
more  of  what  passed  in  the  committee  than  the  report  tells 
them.  If  the  measure  is  palpably  opposed  to  their  party  tenets, 
the  majority  will  reject  it :  if  no  party  question  arises  they 
usually  adopt  the  view  of  the  committee. 

7.  What  has  been  said  already  will  have  shown  that  except 
as  regards  bills  of  great  importance,  or  directly  involving  party 
issues,  there  can  be  little  effective  responsibility  for  legislation. 
The  member  who  brings  in  a  bill  is  not  responsible,  because  the 
committee  generally  alters  his  bill.  The  committee  is  little 
observed  and  the  details  of  what  passed  within  the  four  walls 
of  its  room  are  not  published.  The  great  parties  in  the  House 
are  but  faintly  responsible,  because  their  leaders  are  not  bound 
to  express  an  opinion,  and  a  vote  taken  on  a  non-partisan  bill  is 
seldom  a  strict  party  vote.  Individual  members  are  no  doubt 
responsible,  and  a  member  who  votes  against  a  popular  meas- 
ure, one  for  instance  favoured  by  the  working  men,  will  suffer 
for  it.^  But  the  responsibility  of  individuals,-  most  of  them 
insignificant,  half  of  them  destined  to  vanish,  like  snow-flakes 
in  a  river,  at  the  next  election,  gives  little  security  to  the 
people. 

The  best  defence  that  can  be  advanced  for  this  system  is  that 
it  has  been  naturally  evolved  as  a  means  of  avoiding  worse 

1  The  member  who  has  taken  this  course  is  the  worse  off,  because  he  rarely 
has  an  opportunity  of  explaining  by  a  speech  in  the  House  his  reason  for  his 
vote,  and  is  therefore  liable  to  the  imputation  of  having  been  "got  af  by 
capitalists. 


172  THE   NATIONAL   GOVERNMENT  part  i 

mischiefs.  It  is  really  a  plan  for  legislating  by  a  number  of 
commissions.  Each  commission,  receiving  suggestions  in  the 
shape  of  bills,  taking  evidence  upon  them,  and  sifting  them  in 
debate,  frames  its  measures  and  lays  them  before  the  House  in 
a  shape  which  seems  designed  to  make  amendment  in  details 
needless,  while  leaving  the  general  policy  to  be  accepted  or 
rejected  by  a  simple  vote  of  the  whole  body.  In  this  last 
respect  the  plan  may  be  compared  with  that  of  the  Romans 
during  the  Republic,  whose  general  assembly  of  the  people 
approved  or  disapproved  of  a  bill  as  a  whole,  without  power  of 
amendment,  a  plan  which  had  the  advantage  of  making  laws 
clear  and  simple.  At  Rome,  however,  bills  could  be  proposed 
only  by  a  magistrate  upon  his  official  responsibility ;  they  were 
therefore  comparatively  few  and  sure  to  be  carefully  drawn. 
The  members  of  American  legislative  commissions  have  no 
special  training,  no  official  experience,  little  praise  or  blame  to 
look  for,  and  no  means  of  securing  that  the  overburdened  House 
will  ever  come  to  a  vote  on  their  proposals.  There  is  no  more 
agreement  between  the  views  of  one  commission  and  another 
than  what  may  result  from  the  fact  that  the  majority  in  both 
belongs  to  the  same  party. 

Add  to  the  conditions  above  described  the  fact  that  the 
House  in  its  few  months  of  life  has  not  time  to  deal  with  one- 
twentieth  of  the  many  thousand  bills  which  are  thrown  upon 
it,  that  it  therefore  drops  the  enormous  majority  unconsidered, 
though  some  of  the  best  may  be  in  this  majority,  and  passes 
most  of  those  which  it  does  pass  by  a  suspension  of  the  rules 
which  leaves  everything  to  a  single  vote,^  and  the  marvel 
comes  to  be,  not  that  legislation  is  faulty,  but  that  an  intensely 
practical  people  tolerates  such  defective  machinery.  Some 
reasons  may  be  suggested  tending  to  explain  this  phenomenon. 

Legislation  is  a  difficult  business  in  all  free  countries,  and 
perhaps  more  difficult  the  more  free  the  country  is,  because 
the  discordant  voices  are  more  numerous  and  less  under  con- 
trol. America  has  sometimes  sacrificed  practical  convenience 
to  her  dislike  to  authority. 

The  Americans  surpass  all  other  nations  in  their  power  of 
making  the  best  of  bad  conditions,  getting  the  largest  results 

^  This  can  be  done  by  a  two-thirds  vote  during  the  last  six  days  of  a  session 
and  on  the  first  and  third  Mondays  of  each  month. 


CHAP.  XVI  CONGRESSIONAL   LEGISLATION  173 

out  of  scanty  materials  or  rough  methods.  Many  things  in 
that  country  work  better  than  they  ought  to  work,  so  to  speak, 
or  could  work  in  any  other  country,  because  the  people  are 
shrewdly  alert  in  minimizing  such  mischiefs  as  arise  from 
their  own  haste  or  heedlessness,  and  because  they  have  a  great 
capacity  for  self-help. 

•  Aware  that  they  possess  this  gift,  the  Americans  are  content 
to  leave  their  political  machinery  unreformed.  Persons  who 
propose  comprehensive  reforms  are  suspected  as  theorists  and 
crotchet-mongers.  The  national  inventiveness,  active  in  the 
spheres  of  mechanics  and  money-making,  spends  little  of  its 
force  on  the  details  of  governmental  methods. 

The  want  of  legislation  on  topics  where  legislation  is  needed 
breeds  fewer  evils  than  would  follow  in  countries  like  England 
or  France  where  Parliament  is  the  only  law-making  body. 
The  powers  of  Congress  are  limited  to  comparatively  few 
subjects :  its  failures  do  not  touch  the  general  well-being  of 
the  people,  nor  the  healthy  administration  of  the  ordinary 
law. 

The  faults  of  bills  passed  by  the  House  are  often  cured  by 
the  Senate,  where  discussion  is  more  leisurely  and  thorough. 
The  committee  system  produces  in  that  body  also  some  of  the 
same  flabbiness  and  colourlessness  in  bills  passed.  But  the 
blunders,  whether  in  substance  or  of  form,  of  the  one  chamber 
are  frequently  corrected  by  the  other,  and  many  bad  bills  fail 
owing  to  a  division  of  opinion  between  the  Houses. 

The  President's  veto  kills  off  some  vicious  measures.  He 
does  not  trouble  himself  about  defects  of  form ;  but  where  a 
bill  seems  to  him  opposed  to  sound  policy,  it  is  his  constitu- 
tional duty  to  disapprove  it,  and  to  throw  on  Congress  the 
responsibility  of  passing  it  "  over  his  veto  "  by  a  two-thirds 
vote.     A  good  President  accepts  this  responsibility. 


CHAPTER  XVII 

CONGRESSIONAL    FINANCE 

Finance  is  a  sufficiently  distinct  and  important  department 
of  legislation  to  need  a  chapter  to  itself ;  nor  does  any  legisla- 
ture devote  a  larger  proportion  of  its  time  than  does  Congress 
to  the  consideration  of  financial  bills.  These  are  of  two  kinds: 
those  which  raise  revenue  by  taxation,  and  those  which  direct 
the  application  of  the  public  funds  to  the  various  expenses  of 
the  government.  At  present  Congress  raises  all  the  revenue  it 
requires  by  indirect  taxation,^  and  chiefly  by  duties  of  customs 
and  excise ;  so  taxing  bills  are  practically  tariff  bills,  the  excise 
duties  being  comparatively  little  varied  from  year  to  year. 

The  method  of  passing  both  kinds  of  bills  is  unlike  that  of 
most  European  countries.  In  England,  with  which,  of  course, 
America  can  be  most  easily  compared,  although  both  the 
levying  and  the  spending  of  money  are  absolutely  under  the 
control  of  the  House  of  Commons,  the  House  of  Commons 
originates  no  proposal  for  either.  It  never  either  grants 
money  or  orders  the  raising  of  money  except  at  the  request  of 
the  Crown.  Once  a  year  the  Chancellor  of  the  Exchequer 
lays  before  it,  together  with  a  full  statement  of  the  revenue 
and  expenditure  of  the  past  twelve  months,  estimates  of  the 
expenditure  for  tii^,  coming  twelve  months,  and  suggestions 
for  the  means  of  meeting  that  expenditure  by  taxation  or  by 
borrowing.  He  embodies  these  suggestions  in  resolutions  on 
Avhich,  when  the  House  has  accepted  them,  bills  are  grounded 
imposing  certain  taxes  or  authorizing  the  raising  of  a  loan. 
The  House  may  of  course  amend  the  bills  in  details,  but  no 
private  member  ever  proposes  a  taxing  bill,  for  it  is  no  con- 

1  During  the  Civil  War,  direct  t.'ixes  were  levied  (the  proceeds  of  which 
have,  however,  heen  since  returned  to  the  States) ;  and  many  other  kinds  of 
taxes  besides  those  mentioned  in  the  text  haf  e  been  imposed  at  different  times. 


CHAP.  XVII  -COXGRESISIUXAL   FINANCE  175 

cern  of  aii}^  one  except  tlie  ministry  to  fill  the  public  treasury.^ 
The  estimates  prepared  by  the  several  administrative  depart- 
ments (Army,  Navy,  Office  of  Works,  Foreign  Office,  etc.), 
and  revised  by  the  Treasury,  specify  the  items  of  proposed 
expenditure  with  much  particularity,  and  fill  three  or  more 
bulky  volumes,  which  are  delivered  to  every  member  of  the 
House.  These  estimates  are  debated  in  committee  of  the 
whole  House,  explanations  being  required  from  the  ministers 
who  represent  the  Treasury  and  the  several  departments,  and 
are  passed  in  a  long  succession  of  separate  votes.  Members 
may  propose  to  reduce  any  particular  grants,  but  not  to  in- 
crease them  ;  no  money  is  ever  voted  for  tiie  public  service 
except  that  which  the  Crown  has  asked  for  through  its  minis- 
ters. The  Crown  must  never  ask  for  more  than  it  actually 
needs,  and  hence  the  ministerial  proposals  for  taxation  are 
carefully  calculated  to  raise  just  so  much  money  as  will  easily 
cover  the  estimated  expenses  for  the  coming  year.  It  is  reck- 
oned almost  as  great  a  fault  in  the  finance  minister  if  he  has 
needlessly  overtaxed  the  people,  as  if  he  has  so  undertaxed 
them  as  to  be  left  with  a  deficit.  If  at  the  end  of  a  year  a 
substantial  surplus  appears,  the  taxation  for  next  year  is 
reduced  in  proportion,  supposing  that  the  expenditure  remains 
the  same.  Every  credit  granted  by  Parliament  expires  of 
itself  at  the  end  of  the  financial  year. 

In  the  United  States  the  Secretary  of  the  Treasury  sends 
annually  to  Congress  a  report  containing  a  statement  of  the 
national  income  and  expenditure  and  of  the  condition  of  the 
public  debt,  together  with  remarks  on  the  system  of  taxation 
and  suggestions  for  its  improvement.  He  also  sends  what  is 
called  his  Annual  Letter,  enclosing  the  estimates,  framed  by 
the  various  departments,  of  the  sums  needed  for  the  public  ser- 
vices of  the  United  States  during  the  coming  year.  So  far 
the  Secretary  is  like  a  European  finance  minister,  except  that 
he  communicates  with  the  chamber  on  paper  instead  of  mak- 

1  Of  course  a  private  member  may  carry  a  resolution  involving  additional 
expenditure ;  but  even  this  is  at  variance  with  the  stricter  constitutional  doc- 
trine and  practice ;  a  doctrine  regarded  by  the  statesmen  of  the  last  generation 
as  extremely  valuable,  because  it  restrains  the  propensity  of  a  legislature  to 
yield  to  demands  emanating  from  sections  or  classes,  which  may  entail  heavy 
and  perhaps  unprofitable  charges  on  the  country.  See  the  observations  of  the 
First  Lord  of  the  Treasury  in  the  House  of  Commons,  March  22, 1886. 


176  THE   NATIONAL   GOVERNMENT  part  i 

ing  his  statement  and  proposals  orally.  But  here  the  resem- 
blance stops.  Everything  that  remains  in  the  way  of  financial 
legislation  is  done  solely  by  Congress  and  its  committees,  the 
executive  having  no  further  hand  in  the  matter. 

The  business  of  raising  money  belongs  to  one  committee 
only,  the  standing  committee  of  Ways  and  Means,  consisting 
of  eleven  members.  Its  chairman  is  always  a  leading  man  in 
the  party  which  commands  a  majority  in  the  House.  This 
committee  prepares  and  reports  to  the  House  the  bills  needed 
for  imposing  or  continuing  the  various  customs  duties,  excise 
duties,  etc.  The  report  of  the  Secretary  has  been  referred  by 
the  House  to  this  committee,  but  the  latter  does  not  necessarily 
base  its  bills  upon  or  in  any  way  regard  that  report.  Neither 
does  it  in  preparing  them  start  from  an  estimate  of  the  sums 
needed  to  support  the  public  service.  It  does  iiot,  because  it 
cannot :  for  it  does  not  know  what  grants  for  the  public  ser- 
vice will  be  proposed  by  the  spending  committees,  since  the 
estimates  submitted  in  the  Secretary's  letter  furnish  no  trust- 
worthy basis  for  a  guess.  It  does  not,  for  the  further  reason 
that  the  primary  object  of  customs  duties  has  for  many  years 
past  been  not  the  raising  of  revenue,  but  the  protection  of 
American  industries  by  subjecting  foreign  products  to  a  very 
high  tariff.  This  tariff,  which  was  further  raised  in  1890,  has 
brought  in  an  income  far  exceeding  the  current  needs  of  the 
government.  Two-thirds  of  the  war  debt  having  been  paid 
off,  the  fixed  charges  have  shrunk  to  one-third  of  what  they 
were  when  the  war  ended,  yet  this  tariff  remained  till  1890 
with  few  modifications,  surpluses  constantly  accumulating  in 
the  national  treasury,  until  in  that  year  a  Pension  Act  was 
passed  which  increased  expenditures  so  largely  as  almost  to 
absorb  even  the  growing  surplus.  The  committee  of  Ways 
and  Means  has  therefore  had  no  motive  for  adapting  taxation 
to  expenditure.  The  former  will  be  always  in  excess  so  long 
as  the  protective  tariff  stands,  and  the  protective  tariff  stands 
for  commercial  or  political  reasons  unconnected  with  national 
finance.^ 

1  For  a  long  time  surpluses  were  got  rid  of  by  paying  off  debt ;  but  when  finan- 
ciers began  to  hold  that  a  certain  portion  of  the  debt  ought  to  be  kept  on  foot 
for  banking  and  currency  purposes,  much  discussion  arose  as  to  how  the  accu- 
mulating balance  should  be  disposed  of.    The  Pension  Act.  although  partly 


CHAP.  XVII  COXGKESSIUXAL   FIXAXCE  177 

When  the  revenue  bills  come  to  be  debated  in  committee  of 
the  whole  House  similar  causes  prevent  them  from  being  scru- 
tinized from  the  purely  financial  point  of  view.  Debate  turns 
on  those  items  of  the  tariff  Avhich  involve  gain  or  loss  to  influ- 
ential groups.  Little  inquiry  is  made  as  to  the  amount  needed 
and  the  adaptation  of  the  bills  to  produce  that  amount  and  no 
more.  It  is  the  same  with  ways  and  means  bills  in  the  Sen- 
ate. Communications  need  not  pass  between  the  committees 
of  either  House  and  the  Treasury-.  The  person  most  respon- 
sible, the  person  who  most  nearly  corresponds  to  an  English 
Chancellor  of  the  Exchequer,  or  a  French  Minister  of  Finance, 
is  the  chairman  of  the  House  committee  of  Ways  and  Means. 
But  he  stands  in  no  official  relation  to  the  Treasury,  and  is 
not  required  to  exchange  a  word  or  a  letter  with  its  staff. 
Neither,  of  course,  can  he  count  on  a  majorit}-  in  the  House. 
Though  he  is  a  leading  man  he  is  not  a  leader,  i.e.  he  has  no 
claim  on  the  votes  of  his  own  party,  many  of  whom  may  disap- 
prove of  and  cause  the  defeat  of  his  proposals.  This  befel  in 
1886,  when  the  chairman  of  this  committee,  an  able  man,  and 
perhaps,  after  the  Speaker,  the  most  considerable  person  in 
the  Democratic  majority,  was  beaten  in  his  attempted  reform 
of  the  tariff. 

The  business  of  spending  money  used  to  belong  to  the  com- 
mittee on  Appropriations,  but  in  1883  a  new  committee,  that 
on  Elvers  and  Harbours,  received  a  large  field  of  expenditure ; 
and  in  1886  sundry  other  supply  bills  were  referred  to  sun- 
dry standing  committees.^  The  committee  on  appropriations 
starts  from,  but  does  not  adopt,  the  estimates  sent  in  by  the 
Secretary  of  the  Treasury,  for  the  appropriation  bills  it  pre- 
pares usually  make  large  and  often  reckless  reductions  in  these 
estimates.  The  Elvers  and  Harbours  committee  proposes 
grants  of  money  for  what  are  called  "  internal  improvements," 
nominally  in  aid  of  navigation,  but  practically  in  order  to  turn 
a  stream  of  public  money  into  the  State  or  States  where  each 

intended  to  gratify  tlie  snrvivors  of  the  Northern  armies  in  the  Civil  War,  seems 
to  have  been  also  designed  to  so  deplete  the  Treasnry  as  to  remove  one  reason 
for  reducing  the  j)rotective  tariff. 

1  Mr.  Woodrow  Wilson  informs  me  that  the  hills  so  referred  were  those 
making  appropriations  for  the  Consular  and  Diplomatic  Services,  for  the  Army 
and  Military  Academy,  for  Xaval  aiTairs,  for  tlie  Post  Office,  for  Indian  affairs, 
together  absorbing  fully  half  of  the  whole  governmental  appropriations. 

VOL.  I  :n^ 


THE   NATIONAL   GOVERNMENT 


"  improvement  "  is  to  be  executed.  More  money  is  wasted  in 
this  way  than  what  the  parsimony  of  the  appropriations  com- 
mittee can  save.  Each  of  the  other  standing  committees, 
inchiding  the  committee  on  pensions,  a  source  of  infinite 
waste,^  proposes  grants  of  money,  not  knowing  nor  heeding 
what  is  being  proposed  by  other  committees,  and  guided  by 
the  executive  no  further  than  the  members  choose.  All  the 
expenditures  recommended  must  be  met  by  appropriation  bills, 
but  into  their  propriety  tlie  appropriations  committee  cannot 
inquire. 

Every  revenue  bill  must,  of  course,  come  before  the  House ; 
and  the  House,  whatever  else  it  may  neglect,  never  neglects  the 
discussion  of  taxation  and  money  grants.  These  are  discussed 
as  fully  as  the  pressure  of  work  permits,  and  are  often  added 
to  by  the  insertion  of  fresh  items,  which  members  interested 
in  getting  money  voted  for  a  particular  purpose  or  locality 
suggest.  These  bills  then  go  to  the  Senate,  which  forthwith 
refers  them  to  its  committees.  The  Senate  committee  on 
finance  deals  with  the  revenue-raising  bills ;  the  committee  on 
appropriations  with  supply  bills.  Both  sets  then  come  before 
the  whole  Senate.  Although  it  cannot  initiate  revenue-raising 
bills,  the  Senate  long  ago  made  good  its  claim  to  amend  appro- 
priation bills,  and  does  so  freely,  adding  items  and  often  raising 
the  total  of  the  grants.  When  the  bills  go  back  to  the  House, 
the  House  usually  rejects  the  amendments  ;  the  Senate  adheres 
to  them,  and  a  Conference  committee  is  appointed,  consisting 
of  three  senators  and  three  members  of  the  House,  by  which 
a  compromise  is  settled,  hastily  and  in  secret,  and  accepted, 
generally  in  the  last  days  of  the  session,  by  a  hard-pressed  but 
reluctant  House.  Even  as  enlarged  by  this  committee,  the 
supply  voted  is  often  found  inadequate,  so  a  Deficiency  bill  is 
introduced  in  the  following  session,  including  a  second  series  of 
grants  to  the  departments. 

The  European  reader  will  ask  how  all  tins  is  or  can  be  done 
by  Congress  without  frequent  communication  from  or  to  the 
executive  government.  There  are  such  communications,  for 
the  ministers,  anxious  to  secure  appropriations  adequate  for 
their  respective  departments,  talk  to  the  chairmen  and  appear 

1  The  annual  expenditure  on  pensions  was  in  1887  $75,000,000  (£15,000,000). 
Under  the  statute  of  1890,  it  had  risen  in  1892  to  $155,464,621,  and  is  expected 
to  reach  $200,000,000. 


CHAP.  XVII  CONGRESSIONAL   FINANCE  179 

before  the  committees  to  give  evidence  as  to  departmental 
needs.  But  Congress  does  not  look  to  them  for  guidance  as  in 
the  early  days  it  looked  to  Hamilton  and  Gallatin.  If  the 
House  cuts  down  their  estimates  they  turn  to  the  Senate  and 
beg  it  to  restore  the  omitted  items ;  if  the  Senate  fail  them, 
the  only  resource  left  is  a  Deficiency  bill  in  the  next  session. 
If  one  department  is  so  starved  as  to  be  unable  to  do  its  work, 
while  another  obtains  lavish  grants  which  invite  jobbery  or 
waste,  it  is  the  committees,  not  the  executive,  whom  the  people 
ought  to  blame.  If,  by  a  system  of  log-rolling,  vast  sums  are 
wasted  upon  useless  public  works,  no  minister  has  any  oppor- 
tunity to  interfere,  any  right  to  protest.  A  minister  cannot,  as 
in  England,  bring  Congress  to  reason  by  a  threat  of  resignation, 
for  it  would  make  no  difference  to  Congress  if  the  whole 
cabinet  were  to  resign,  unless  of  course  the  congressmen  most 
conspicuously  concerned  should  be  so  palpably  in  fault  that 
the  people  could  be  roused  to  vigorous  disapproval. 

What  I  have  stated  may  be  summarized  as  follows : 

There  is  practically  no  connection  between  the  policy  of 
revenue  raising  and  the  policy  of  revenue  spending,  for  these 
are  left  to  different  committees  whose  views  may  be  opposed, 
and  the  majority  in  the  House  has  no  recognized  leaders  to 
remark  the  discrepancies  or  make  one  or  other  view  prevail. 
In  the  forty-ninth  Congress  a  strong  free-trader  was  chairman 
of  the  tax-proposing  committee  on  "Ways  and  Means,  while  a 
strong  protectionist  was  chairman  of  the  spending  committee 
on  Appropriations. 

There  is  no  relation  between  the  amount  proposed  to  be 
spent  in  any  one  year,  and  the  amount  proposed  to  be  raised. 
But  for  the  fact  that  the  high  tariff  has,  until  quite  recently, 
produced  a  large  annual  surplus,  financial  breakdowns  must 
have  ensued. 

The  knowledge  and  experience  of  the  permanent  ofiicials 
either  as  regards  the  productivity  of  taxes,  and  the  incidental 
benefits  or  losses  attending  their  collection,  or  as  regards  the 
nature  of  various  kinds  of  expenditure  and  their  comparative 
utility,  can  be  turned  to  account  only  by  interrogating  these 
officials  before  the  committees.  Their  views  are  not  stated  in 
the  House  by  a  parliamentary  chief,  nor  tested  in  debate  by  argu- 
ments addressed  to  him  which  he  must  there  and  then  answer. 


180  THE   NATIONAL   GOVERNMENT  part  i 

Little  check  exists  on  the  tendeuc}'-  of  members  to  deplete 
the  public  treasury  by  securing  grants  for  their  friends  or  con- 
stituents, or  by  putting  through  financial  jobs  for  Avhich  they 
are  to  receive  some  private  consideration.  If  either  the  major- 
ity of  the  committee  on  Appropriations  or  the  House  itself 
suspects  a  job,  the  grant  jjroposed  may  be  rejected.  But  it  is 
the  duty  of  no  one  in  particular  to  scent  out  a  job,  and  to  de- 
feat it  by  public  exposure. 

The  nation  becomes  so  puzzled  by  a  financial  policy  varying 
from  year  to  year,  and  controlled  by  no  responsible  leaders,  as 
to  feel  diminished  interest  in  congressional  discussions  and 
diminished  confidence  in  Congress.^ 

The  result  on  the  national  finance  is  unfortunate.  A 
thoughtful  American  publicist  remarks,  "  So  long  as  the  debit 
side  of  the  national  account  is  managed  by  one  set  of  men,  and 
the  credit  side  by  another  set,  both  sets  working  separately 
and  in  secret  without  public  responsibility,  and  without  inter- 
vention on  the  part  of  the  executive  official  who  is  nominally 
responsible  ;  so  long  as  these  sets,  being  composed  largely  of 
new  men  every  two  years,  give  no  attention  to  business  excejit 
when  Congress  is  in  session,  and  thus  spend  in  preparing  plans 
the  whole  time  which  ought  to  be  spent  in  public  discussion  of 
plans  already  matured,  so  that  an  immense  budget  is  rushed 

1  "The  noteworthy  fact  that  even  the  most  thorough  debates  in  Congress 
fail  to  awaken  any  genuine  or  active  interest  in  the  minds  of  the  people  has 
had  its  most  striking  illustrations  in  the  course  of  our  financial  legislation,  for 
though  the  discussions  which  have  taken  place  in  Congress  upon  financial 
questions  have  been  so  frequent,  so  protracted,  and  so  thorough,  engrossing  a 
large  part  of.  the  time  of  the  House  ou  their  every  recurrence,  they  seem  in 
almost  every  instance  to  have  made  scarcely  any  impression  upon  the  public 
mind.  The  Coinage  Act  of  187o,  by  which  silver  was  demonetized,  had  been 
before  the  country  many  years  ere  it  reached  adoption,  having  been  time  and 
again  considered  by  committees  of  Congress,  time  and  again  printed  and  dis- 
cussed in  one  shape  or  another,  and  having  finally  gained  acceptance  appar- 
ently by  sheer  persistence  and  importunity.  The  Resumption  Act  of  1875,  too, 
had  had  a  like  career  of  repeated  considerations  by  committees,  repeated 
printings  and  a  full  discussion  by  Congress,  and  yet  when  the  Bland  Silver 
Bill  of  1878  was  on  its  way  through  the  mills  of  legislation,  some  of  the  most 
prominent  newspapers  of  the  country  declared  with  confidence  that  the  Re- 
sumption Act  had  been  passed  inconsiderately  and  in  haste ;  and  several  mem- 
bers of  Congress  had  previously  complained  that  the  demonetization  scheme 
of  1873  had  been  pnshed  surreptitiously  through  the  courses  of  its  passage. 
Congress  having  been  tricked  into  accepting  it,  doing  it  scarcely  knew  what." 
—  Woodrow  Wilson,  Conpressional  Government,  p.  Ii8.  This  remark,  how- 
ever, would  not  apply  to  the  tariff  debates  of  1890. 


CHAP.  XVII  CONGRESSIONAL   FINANCE  181 

through  without  discussion  in  a  week  or  ten  dsijs  —  just  so 
long  the  finances  Avill  go  from  bad  to  worse,  no  matter  by  what 
name  you  call  the  party  in  power.  Iso  other  nation  on  earth 
attempts  such  a  thing,  or  could  attempt  it  without  soon  coming 
to  grief,  OUT  salvation  thus  far  consisting  in  an  enormous  in- 
come, with  practically  no  drain  for  military  expenditure." 

It  may  be  replied  to  this  criticism  that  the  enormous  in- 
come, added  to  the  fact  that  the  tariff  is  imposed  for  protection 
rather  than  for  revenue,  is  not  only  the  salvation  of  the  United 
States  Government  under  the  present  system,  but  also  the 
cause  of  that  system.  Were  the  tariff  framed  with  a  view  to 
revenue  only,  no  higher  taxes  would  be  imposed  than  the 
public  service  required,  and  a  better  method  of  balancing  the 
public  accounts  would  follow.  This  is  true.  The  present 
state  of  things  is  evidently  exceptional.  America  is  the  only 
country  in  the  world  whose  difficulty  is  not  to  raise  money  but 
to  spend  it.^  But  it  is  equally  true  that  Congress  is  contract- 
ing lax  habits,  and  ought  to  change  them. 

How  comes  it,  if  all  this  be  true,  that  the  finances  of 
America  are  so  flourishing,  and  in  particular  that  the  public 
debt  has  been  paid  off  with  such  regularity  and  speed  that 
from  $3,000,000,000  (£600,000,000)  in  1865,  it  had  sunk  to 
$1,000,000,000  (£200,000,000)  in  1890  ?  Does  not  so  brilliant 
a  result  speak  of  a  continuously  wise  and  skilful  management 
of  the  national  revenue  ? 

The  paying  off  of  the  debt  seems  to  be  due  to  the  following 
causes : — 

To  the  prosperity  of  the  country  which,  with  one  interval  of 
trade  depression,  has  for  twenty-five  years  been  developing  its 
amazing  natural  resources  so  fast  as  to  produce  an  amount  of 
wealth  which  is  not  only  greater,  but  probably  more  widely  dif- 
fused through  the  population,  than  in  any  other  part  of  the  world. 

To  the  spending  habits  of  the  people,  who  allow  themselves 
luxuries  such  as  the  masses  enjoy  in  no  other  country,  and 
therefore  pay  more  than  any  other  people  in  the  way  of  indirect 

1  For  twenty-eight  years  there  liave  been  surpluses,  the  smallest  of  £!2,344,000 
in  1874,  the  largest  of  §145,543,000  in  1882.  The  surplus  for  the  year  ending 
30th  June  1890  was  about  .SJ^jOOO.OOO.  The  receipts  from  customs  alone  were 
greater  by  about  848,000,000  in  1890  than  in  18S5.  The  total  revenue  of  the  year 
ending  June  30,  1892,  was  §425,000,000,  and  the  total  expenditure  §415,000,000, 
the  receipts  from  customs  duties  having  declined,  and  the  expenditure,  espe- 
cially on  pensions,  having  increased. 


182  THE   NATIONAL   GOVERNMENT  part  i 

taxation.  The  fact  that  Federal  revenue  is  raised  by  duties  of 
customs  and  excise  makes  the  people  far  less  sensible  of  the 
pressure  of  taxation  than  they  would  be  did  they  pay  directly. 

To  the  absence  of  the  military  and  naval  charges  which  press 
so  heavily  on  European  states. 

To  the  maintenance  of  an  exceedingly  high  tariff  at  the 
instance  of  interested  persons  who  have  obtained  the  public 
ear  and  can  influence  Congress.  It  is  the  acceptance  of  the 
policy  of  Protection,  rather  than  any  deliberate  conviction 
that  the  debt  ought  to  be  paid  off,  that  has  caused  the  continu- 
ance of  a  tariff  whose  huge  and  constant  surpluses  have  enabled 
the  debt  to  be  reduced. 

Europeans,  admiring  and  envying  the  rapidity  with  which 
the  war  debt  has  been  reduced,  have  been  disposed  to  credit  the 
Americans  with  brilliant  financial  skill.  That,  however,  which 
was  really  admirable  in  the  conduct  of  the  American  people 
was  not  their  judgment  in  selecting  particular  methods  for  rais- 
ing money,  but  their  readiness  to  submit  during  and  immedi- 
ately after  the  war  to  unprecedentedly  heavy  taxation.  The 
interests  (real  or  supposed)  of  the  manufacturing  classes  have 
caused  the  maintenance  of  the  tariff  then  imposed ;  nature,  by 
giving  the  people  a  spending  power  which  has  rendered  the 
tariff  marvellously  productive,  has  done  the  rest. 

Under  the  system  of  congressional  finance  here  described 
America  wastes  millions  annually.  But  her  wealth  is  so  great, 
her  revenue  so  elastic,  that  she  is  not  sensible  of  the  loss.  She 
has  the  glorious  privilege  of  youth,  the  privilege  of  committing 
errors  without  suffering  from  their  consequences. 


CHAPTEK   XVIII 

THE    RELATIONS    OF    THE    TWO    HOUSES 

The  creation  by  the  Constitution  of  1789  of  two  chambers  in 
the  United  States,  in  place  of  the  one  chamber  which  existed 
under  the  Confederation,  has  been  usually  ascribed  by  Euro- 
peans to  mere  imitation  of  England ;  and  one  learned  writer 
goes  so  far  as  to  suggest  that  if  England  had  possessed  three 
chambers,  like  the  States  General  of  France,  or  four,  like  the 
Diet  of  Sweden,  a  crop  of  three-chambered  or  four-chambered 
legislatures  would,  in  obedience  to  the  example  of  happy  and 
successful  England,  have  sprung  iip  over  the  world.  There 
were,  however,  better  reasons  than  deference  to  English  prec- 
edents to  justify  the  division  of  Congress  into  tAvo  houses  and 
no  more ;  and  so  many  indubitable  instances  of  such  a  defer- 
ence may  be  quoted  that  there  is  no  need  to  hunt  for  others. 
Not  to  dwell  upon  the  fact  that  there  were  two  chambers  in 
all  but  two  ^  of  the  thirteen  original  States,  the  Convention  of 
1787  had  two  solid  motives  for  fixing  on  this  number,  a  motive 
of  principle  and  theory,  a  motive  of  immediate  expediency. 

The  chief  advantage  of  dividing  a  legislature  into  two 
branches  is  that  the  one  may  check,  the  haste  and  correct  the 
mistakes  of  the  other.  This  advantage  is  purchased  at  the 
price  of  some  delay,  and  of  the  weakness  which  results  from  a 
splitting  up  of  authority.  If  a  legislature  be  constituted  of 
three  or  more  branches,  the  advantage  is  scarcely  increased,  the 
delay  and  weakness  are  immensely  aggravated.  Two  chambers 
can  be  made  to  work  together  in  a  way  almost  impossible  to 
more  than  two.  As  the  proverb  says,  "Two's  company,  three's 
none."  If  there  be  three  chambers,  two  are  sure  to  intrigue 
and  likely  to  combine  against  the  third.     The  difficulties  of 

1  Pennsylvania  and  Georgia ;  the  former  of  which  added  a  Senate  in  1789, 
the  latter  in  1790.     Seepo.s^,  Chapter  XXXIX.  0!i  State  Legislatures. 

183 


184  THE   XATIOXAL   GOVERXMEXT  part  i 

carrying  a  measure  "without  sacrificing  its  imity  of  principle,  of 
fixing  responsibility,  of  securing  the  watchful  attention  of  the 
public,  serious  with  two  chambers,  become  enormous  with  three 
or  more. 

To  these  considerations  there  was  added  the  practical  ground 
that  the  division  of  Congress  into  two  houses  supplied  a  means 
of  settling  the  dispute  which  raged  between  the  small  and  the 
large  States.  The  latter  contended  for  a  representation  of  the 
States  in  Congress  proportioned  to  their  respective  populations, 
the  former  for  their  equal  representation  as  sovereign  common- 
wealths. Both  were  satisfied  by  the  plan  which  created  two 
chambers  in  one  of  which  the  former  principle,  in  the  other  of 
which  the  latter  principle  was  recognized.  The  country  re- 
mained a  federation  in  respect  of  the  Senate,  it  became  a  nation 
in  respect  of  the  House  :  there  was  no  occasion  for  a  third 
chamber. 

The  respective  characters  of  the  two  bodies  are  wholly  un- 
like those  of  the  so-called  upper  and  lower  chambers  of  Europe. 
In  Europe  there  is  always  a  difference  of  political  complex- 
ion, generally  resting  on  a  difference  in  personal  composition. 
There  the  upper  chamber  represents  the  aristocracy  of  the 
country,  or  the  men  of  wealth,  or  the  high  of&cials,  or  the 
influence  of  the  Crown  and  Court ;  wliile  the  lower  chamber 
represents  the  midtitude.  Between  the  Senate  and  the  House 
there  is  no  such  difference.  Both  ecjually  represent  the  people, 
the  whole  people,  and  nothing  but  the  people.  The  individual 
members  come  from  the  same  classes  of  the  community ;  and 
though  there  are  more  rich  men  (in  proportion  to  numbers)  in 
the  Senate  than  in  the  House,  the  influence  of  capital  is  not 
markedly  greater.  Both  have  been  formed  by  the  same  social 
influences :  and  the  social  pretensions  of  a  senator  expire  with 
his  term  of  office.  Both  are  possessed  by  the  same  ideas, 
governed  by  the  same  sentiments,  equally  conscious  of  their 
dependence  on  public  opinion.  The  one  has  never  been,  like 
the  English  House  of  Commons,  a  popular  pet,  the  other  never, 
like  the  English  House  of  Lords,  a  popidar  bugbear. 

What  is  perhaps  stranger,  the  two  branches  of  Congress  have 
not  exhibited  that  contrast  of  feeling  and  policy  which  might 
be  expected  from  the  different  methods  by  which  they-  are 
chosen.     In  the  House  the  large  States  are  predominant :  ten 


CHAP,  xvin       RELATIONS   OF   THE   TWO   HOUSES  185 


I 


out  of  forty-four  (less  than  one-fourtli)  return  an  absolute 
majority  of  the  332  reiu'esentatives.  In  the  Senate  these  same 
ten  States  have  only  twenty  members  out  of  eightj^-eight,  less 
than  a  fourth  of  the  whole.  In  other  words,  these  ten  States 
are  more  than  sixteen  times  as  powerful  in  the  House  as  they 
are  in  the  Senate.  But  as  the  House  has  never  been  the  organ 
of  the  large  States,  nor  prone  to  act  in  their  interest,  so  neither 
has  the  Senate  been  the  stronghold  of  the  small  States,  for 
American  politics  have  never  turned  upon  an  antagonism  be- 
tween these  two  sets  of  commonwealths.  Questions  relating 
to  States'  rights  and  the  greater  or  less  extension  of  the  powers 
of  the  national  government  have  played  a  leading  part  in  the 
history  of  the  Union.  But  although  small  States  might  be 
supposed  to  be  specially  zealous  for  States'  rights,  the  tendency 
to  uphold  them  has  been  no  stronger  in  the  Senate  than  in  the 
House.  In  one  phase  of  the  slavery  struggle  the  Senate  hap- 
pened to  be  under  the  control  of  the  slaveholders  while  the 
House  was  not;  and  then  of  course  the  Senate  championed 
the  sovereignty  of  the  States.  But  this  attitude  was  purely 
accidental,  and  disappeared  with  its  transitory  cause. 

The  real  differences  between  the  two  bodies  are  due  to  the 
smaller  size  of  the  Senate,  and  the  consequent  greater  facilities 
for  debate,  to  the  somewhat  superior  capacity  of  its  members, 
to  the  habits  which  its  executive  functions  form  in  individual 
senators,  and  have  formed  in  the  whole  body. 

In  Europe,  where  the  question  as  to  the  utility  of  second 
chambers  is  actively  canvassed,  two  objections  are  made  to 
them,  one  that  they  deplete  the  first  or  popular  chamber  of 
able  men,  the  other  that  they  induce  deadlocks  and  consequent 
stoppage  of  the  wheels  of  government.  On  both  arguments 
light  may  be  expected  from  American  experience. 

Although  the  Senate  does  draw  off  from  the  House  many  of 
its  ablest  men,  it  is  not  clear,  paradoxical  as  the  observation 
may  appear,  that  the  House  would  be  much  the  better  for  re- 
taining those  men.  The  faults  of  the  House  are  mainly  due, 
not  to  Avant  of  talent  among  individuals,  but  to  its  defective 
methods,  and  especially  to  the  absence  of  leadership.  These 
are  faults  which  the  addition  of  twenty  or  thirty  able  men 
would  not  cure.  Some  of  the  committees  would  be  stronger, 
and  so  far  the  work  would  be  better  done.     But  the  House  as 


186  THE   NATIONAL   GOVERNMENT  part  i 

a  whole  would  not  (assuming  its  rules  and  usages  to  remain 
what  they  are  now)  be  distinctly  a  greater  power  in  the  coun- 
try. On  the  other  hand,  the  merits  of  the  Senate  are  largely 
due  to  the  fact  that  it  trains  to  higher  efficiency  the  ability  which 
it  has  drawn  ironi  the  House,  and  gives  that  ability  a  sphere 
in  which  it  can  develop  with  better  results.  Were  the  Senate 
and  the  House  thrown  into  one,  the  country  would  suffer  more, 
I  think  much  more,  by  losing  the  Senate  than  it  would  gain  by 
improving  the  House,  for  the  united  body  would  have  the  qual- 
ities of  the  House  and  not  those  of  the  Senate. 

Collisions  between  the  two  Houses  are  frequent.  Each  is 
jealous  and  combative.  Each  is  prone  to  alter  the  bills  that 
come  from  the  other ;  and  the  Senate  in  particular  knocks 
about  remorselessly  those  favourite  children  of  the  House,  the 
appropriation  bills.  The  fact  that  one  House  has  passed  a  bill 
goes  but  a  little  way  in  inducing  the  other  to  pass  it ;  the  Sen- 
ate would  reject  tAventy  House  bills  as  readily  as  one.  Dead- 
locks, however,  disagreements  over  serious  issues  which  stop 
the  machinery  of  administration,  are  not  common.  They  rarely 
cause  excitement  or  alarm  outside  Washington,  because  the 
country,  remembering  previous  instances,  feels  sure  they  will 
be  adjusted,  and  knows  that  either  House  would  yield  were  it 
unmistakably  condemned  by  public  opinion.  The  executive  gov- 
ernment goes  on  undisturbed,  and  the  worst  that  can  happen  is 
the  loss  of  a  bill  which  may  be  passed  four  months  later.  Even 
as  between  the  two  bodies  there  is  no  great  bitterness  in  these 
conflicts,  because  the  causes  of  quarrel  do  not  lie  deep.  Some- 
times it  is  self-esteem  that  is  involved,  the  sensitive  self-esteem 
of  an  assembly.  Sometimes  one  or  other  House  is  playing  for 
a  party  advantage.  That  intensity  which  in  the  similar  con- 
tests of  Europe  arises  from  class  feeling  is  absent,  because  there 
is  no  class  distinction  between  the  two  American  chambers. 
Thus  the  country  seems  to  be  watching  a  fencing  match  rather 
than  a  combat  d,  outrance. 

I  dwell  upon  this  substantial  identity  of  character  in  the 
Senate  and  the  House  because  it  explains  the  fact,  surprising 
to  a  European,  that  two  perfectly  co-ordinate  authorities,  neither 
of  which  has  any  more  right  than  its  rival  to  claim  to  speak 
for  the  Avhole  nation,  manage  to  get  along  together.  Their 
quarrels  are  professional  and  personal  rather  than  conflicts  of 


CHAP,  xviii        RELATIONS   OF   THE   TWO   HOUSES  187 


adverse  principles.  The  two  bodies  are  not  hostile  elements  in 
the  nation,  striving  for  supremacy,  but  servants  of  the  same 
master,  whose  word  of  rebuke  will  quiet  them. 

It  must,  however,  be  also  remembered  that  in  such  countries 
as  England,  France,  and  Italy,  the  popular  chamber  stands  in 
very  close  relation  with  the  executive  government,  which  it  has 
virtually  installed  and  Avhich  it  supports.  A  conflict  between 
the  two  chambers  in  such  countries  is  therefore  a  conflict  to  which 
the  executive  is  a  party,  involving  issues  which  may  be  of  the 
extremest  urgency ;  and  this  naturally  intensifies  the  struggle. 
For  the  House  of  Lords  in  England  or  the  Senate  in  Italy  to 
resist  a  demand  for  legislation  made  by  the  ministry,  who  are 
responsible  for  the  defence  and  peace  of  the  country,  and 
backed  by  the  representative  House,  is  a  more  serious  matter 
than  almost  any  collision  between  the  Senate  and  the  House  can 
be  in  America.^ 

The  United  States  is  the  only  great  country  in  the  world  in 
which  the  two  Houses  are  really  equal  and  co-ordinate.  Such 
a  system  could  hardly  work,  and  therefore  could  not  last,  if  the 
executive  were  the  creature  of  either  or  of  both,  nor  unless  both 
were  in  close  touch  with  the  sovereign  people. 

When  each  chamber  persists  in  its  own  view,  the  regulai-  pro- 
ceeding is  to  appoint  a  committee  of  conference,  consisting  of 
three  members  of  the  Senate  and  three  of  the  House.  These 
six  meet  in  secret,  and  generally  settle  matters  by  a  compro- 
mise, which  enables  each  side  to  retire  with  honour.  When 
appropriations  are  involved,  a  sum  intermediate  between  the 
smaller  one  which  the  House  proposes  to  grant  and  the  larger 
one  desired  by  the  Senate  is  adopted.  If  no  compromise  can 
be  arranged,  the  conflict  continues  till  one  side  yields  or  it  ends 
by  an  adjournment,  which  of  course  involves  the  failure  of  the 
measure  disagreed  upon.  The  House  at  one  time  tried  to 
coerce  the  Senate  into  submission  by  adding  "  riders,"  as  they 
are  called,  to  appropriation  bills,  i.e.  annexing  or  ''tacking" 
(to  use  the  English  expression)  pieces  of  general  legislation  to 
bills  granting  sums  of  money.     This  puts  the  Senate  in  the 

1  Of  course  a  case  may  be  imagined  in  which  the  President  should  aslv  for 
legislation,  as  Lincoln  did  during  the  war,  and  one  House  of  Congress  should 
grant,  the  other  refuse,  the  Acts  demanded.  But  such  cases  are  less  likely  to 
occur  in  America  than  in  Europe  under  the  Cabinet  system. 


188  THE   NATIONAL   GOVERNMENT  part  i 

dilemma  of  eitlier  accepting  the  miwelcome  rider,  or  rejecting 
the  whole  bill,  and  thereby  withholding  from  the  executive  the 
funds  it  needs.  This  happened  in  1855  and  1856.  However, 
the  Senate  stood  lirm,  and  the  House  gave  Avay.  The  device 
had  previously  been  attempted  (in  1819)  by  the  Senate  in  tack- 
ing a  pro-slavery  provision  to  an  appropriation  bill  which  it  was 
returning  to  the  House,  and  it  was  revived  by  both  Houses 
against  President  Andrew  Johnson  in  1867. 

In  a  contest  the  Senate  usually,  though  not  invariably,  gets 
the  better  of  the  House.  It  is  smaller,  and  can  therefore  more 
easily  keep  its  majority  together;  its  members  are  more  ex- 
perienced ;  and  it  has  the  great  advantage  of  being  permanent, 
whereas  the  House  is  a  transient  body.  The  Senate  can  hold 
out,  because  if  it  does  not  get  its  way  at  once  against  the 
House,  it  may  do  so  when  a  new  House  comes  up  to  Washing- 
ton. The  House  cannot  afford  to  wait,  because  the  hour  of  its 
own  dissolution  is  at  hand.  Besides,  while  the  House  does  not 
know  the  Senate  from  inside,  the  Senate,  many  of  whose  mem- 
bers have  sat  in  the  House,  knows  all  the  "  ins  and  outs  "  of 
its  rival,  can  gauge  its  strength  and  play  upon  its  weakness. 


CHAPTER   XIX 

GENERAL    OBSERVATIONS    OX    CONGRESS 

After  this  inquiiy  into  the  composition  and  working  of  each 
branch  of  Congress,  it  remains  for  me  to  make  some  observa- 
tions which  apply  to  both  Houses,  and  which  may  tend  to  indi- 
cate the  features  that  distinguish  them  from  the  representative 
assemblies  of  the  Old  World.  The  European  reader  must  bear 
in  mind  three  points  which,  in  following  the  details  of  the  last 
few  chapters,  he  may  have  forgotten.  The  first  is  that  Con- 
gress is  not  like  the  Parliaments  of  England,  France,  and 
Italy,  a  sovereign  assembly,  but  is  subject  to  the  Constitution, 
which  only  the  people  can  change.  The  second  is,  that  it 
neither  appoints  not  dismisses  the  executive  government,  which 
springs  directly  from  popular  election.  The  third  is,  that  its 
sphere  of  legislative  action  is  limited  by  the  existence  of  forty- 
four  governments  in  the  several  States,  whose  authority  is  just 
as  Avell  based  as  its  own,  and  cannot  be  curtailed  by  it. 

I.  The  choice  of  members  of  Congress  is  locally  limited  by 
law  and  by  custom.  Under  the  Constitution  every  represen- 
tative and  every  senator  must  when  elected  be  an  inhabitant 
of  the  State  whence  he  is  elected.  Moreover,  State  law  has 
in  many  and  custom  practically  in  all  States,  established  that 
a  representative  must  be  resident  in  the  congressional  district 
which  elects  him.^  The  only  exceptions  to  this  practice  occur 
in  large  cities  where  occasionally  a  man  is  chosen  who  lives  in 
a  different  district  of  the  city  from  that  which  returns  him ; 

1  The  best  legal  authorities  hold  that  a  provision  of  this  kind  is  invalid, 
because  State  law  has  no  power  to  narrow  the  qualifications  for  a  Federal 
representative  prescribed  by  the  Constitution  of  the  United  States.  And  Con- 
gress would  probably  so  hold  if  the  question  arose  in  a  case  brought  before  it 
as  to  a  disputed  election.  So  far  as  I  have  been  able  to  ascertain,  the  point 
has  never  arisen  for  determination. 

189 


190  THE   NATIONAL   GOVERNMENT  part  i 

but  such  exceptions  are  rare.-'  This  restriction,  inconvenient 
as  it  is  both  to  candidates,  whose  field  of  choice  in  seeking  a 
constituency  it  narrows,  and  to  constituencies,  whom  it  debars 
from  choosing  persons,  liowever  eminent,  who  do  not  reside  in 
their  midst,  seems  to  Americans  so  obviously  reasonable  that 
few  persons,  even  in  the  best  educated  classes,  will  admit  its 
policy  to  be  disputable.  In  what  are  we  to  seek  the  causes  of 
this  opinion  ? 

First.  In  the  existence  of  States,  originally  separate  politi- 
cal commvmities,  still  for  many  purposes  independent,  and  accus- 
tomed to  consider  the  inhabitant  of  another  State  as  almost  a 
foreigner.  A  New  Yorker,  Pennsylvanians  would  say,  owes 
allegiance  to  New  York  ;  he  cannot  feel  and  think  as  a  citizen 
of  Pennsylvania,  and  cannot  therefore  properly  represent 
Pennsylvanian  interests.  This  sentiment  has  spread  by  a  sort 
of  sympathy,  this  reasoning  has  been  applied  by  a  sort  of 
analogy,  to  the  counties,  the  cities,  the  electoral  districts  of 
the  State  itself.  State  feeling  has  fostered  local  feeling ;  the 
locality  deems  no  man  a  fit  representative  who  has  not  by 
residence  in  its  limits,  and  by  making  it  his  political  home, 
the  phice  where  he  exercises  his  civic  rights,  become  soaked 
with  its  own  local  sentiment. 

Secondly.  Much  of  the  interest  felt  in  the  proceedings  of 
Congress  relates  to  the  raising  and  spending  of  money. 
Changes  in  the  tariff  may  affect  the  industries  of  a  locality  ; 
or  a  locality  may  petition  for  an  appropriation  of  public  funds 
to  some  local  public  work,  the  making  of  a  harbour,  or  the 
improvement  of  the  navigation  of  a  river.  In  both  cases  it  is 
thought  that  no  one  but  an  inhabitant  can  duly  comprehend  the 
needs  or  zealously  advocate  the  demands  of  a  neighbourhood. 

Thirdly.  Inasmuch  as  no  high  qualities  of  statesmanship 
are  expected  from  a  congressman,  a  district  would  think  it  a 
slur  to  be  told  that  it  ought  to  look  beyond  its  own  borders  for 
a  representative ;  and  as  the  post  is  a  paid  one,  the  people  feel 
that  a  good  thing  ought  to  be  kept  for  one  of  themselves 
rather  than  thrown  away  on  a  stranger.     It  is  by  local  politi- 

1  Howevei-,  in  1890  one  of  the  candidates  for  the  fifth  congressional  district 
of  Massachusetts  was  not  a  resident  in  that  district,  and  was  not  thought  to 
have  suffered  seriously  on  that  account.  Sometimes  a  man  moves  into  a  dis- 
trict in  order  to  be  chosen  tliere. 


CHAP.  XIX     GENERAL  U13SEKVATI0NS  ON  CONGRESS  191 

cal  work,  organizing,  canvassing,  and  harangning,  that  a  party 
is  kept  going  :  and  this  work  must  be  rewarded. 

A  perusal  of  the  chapter  of  the  Federalist,  which  argues 
that  one  representative  for  30,000  inhabitants  will  sufficiently 
satisfy  republican  needs,  suggests  another  reflection.  The 
writer  refers  to  some  who  held  a  numerous  representation  to 
be  a  democratic  institution,  because  it  enabled  every  small  dis- 
trict to  make  its  voice  heard  in  the  national  Congress.  Such 
representation  then  existed  in  the  State  legislatures.  Evi- 
dently the  habits  of  the  people  were  formed  by  these  State  legis- 
latures, in  which  it  was  a  matter  of  course  that  the  people  of 
each  township  or  city  sent  one  of  themselves  to  the  assembly 
of  the  State.  When  they  came  to  return  members  to  Con- 
gress, they  followed  the  same  practice.  A  stranger  had  no 
means  of  making  himself  known  to  them  and  would  not  think 
of  offering  himself.  That  the  habits  of  England  are  different 
may  be  due,  so  far  as  the  eighteenth  century  is  concerned,  to 
the  practice  of  borough-mongering,  under  which  candidates 
imcohnected  with  the  place  were  sent  down  by  some  influen- 
tial person,  or  bought  the  seat  from  the  corrupt  corporation  or 
the  limited  body  of  freemen.  Thus  the  notion  that  a  stranger 
might  do  well  enough  for  a  borough  grew  up,  while  in  counties 
it  remained,  till  1885,  a  maxim  that  a  candidate  ought  to  own 
land  in  the  county  ^  —  the  old  law  required  a  freehold  qualifi- 
cation somewhere  —  or  ought  to  live  in,  or  ought  at  the  very 
least  (as  I  once  heard  a  candidate,  whose  house  lay  just  out- 
side the  county  for  which  he  was  standing,  allege  on  his  own 
behalf)  to  look  into  the  county  from  his  window  while  shaving 
in  the  morning.^  The  English  practice  might  thus  seem  to 
be  an  exception  due  to  special  causes,  and  the  American  prac- 

1  The  old  law  (9  Anne,  c.  5)  required  all  members  to  possess  a  freehold 
qualification  somewhere.  All  property  qualifications  were  abolished  by 
statute  in  1858. 

2  The  Englisli  habit  of  allowing  a  man  to  stand  for  a  place  with  which  he  is 
personally  unconnected  would  doubtless  be  favoured  by  the  fact  that  many 
ministers  are  necessarily  members  of  the  House  of  Commons.  The  inconven- 
ience of  excluding  a  man  from  the  service  of  the  nation  because  he  could  not 
secure  his  return  in  the  place  of  his  residence  would  be  unendurable.  No  such 
reason  exists  in  America,  because  ministers  cannot  be  members  of  Congress. 
In  France,  Germany,  and  Italy  the  practice  resembles  that  of  England,  i.e. 
many  members  sit  for  places  where  they  do  not  reside,  though  a  candidate 
residing  in  the  place  he  stands  for  has  a  certain  advantage. 

It  is  remarkable  that  the  original  English  practice  required  the  member  to 


192  THE   NATIONAL   GOVERNMENT  part  i 

tice  that  whicli  is  natural  to  a  free  country,  wliere  local  self- 
government  is  fully  developed  and  rooted  in  the  habits  of  the 
people.  It  is  from  their  local  government  that  the  political 
ideas  of  the  American  people  have  been  formed  :  and  they 
have  applied  to  their  State  assemblies  and  their  national 
assembly  the  customs  which  grew  up  in  the  smaller  area.' 

These  are  the  best  explanations  I  can  give  of  a  phenomenon 
which  strikes  Europeans  all  the  more  because  it  exists  among 
a  population  more  unsettled  and  migratory  than  any  in  the 
Old  World.  But  they  leave  nie  still  surprised  at  this  strength 
of  local  feeling,  a  feeling  not  less  marked  in  the  new  regions 
of  the  Far  West  than  in  the  venerable  commonwealths  of 
Massachusetts  and  Virginia.  Fierce  as  is  the  light  of  criticism 
which  beats  upon  every  part  of  that  system,  this  point  remains 
uncensured,  because  assumed  to  be  part  of  the  order  of  nature. 

So  far  as  the  restriction  to  residents  in  a  State  is  concerned 
it  is  intelligible.  The  senator  was  originally  a  sort  of  am- 
bassador from  his  State.  He  is  chosen  by  the  legislature  or 
collective  authority  of  his  State.  He  cannot  well  be  a  citizen 
of  one  State  and  represent  another.  Even  a  representative  in 
the  House  from  one  State  who  lived  in  another  might  be  per- 

be  a  resident  of  the  county  or  borough  which  returned  him  to  Parliament. 
TJiis  is  said  to  be  a  requirement  at  common  law  (witness  the  words  ' '  de  comi- 
tatu  tuo  "  in  the  writ  for  the  election  addressed  to  the  sheriff) ;  and  was  ex- 
pressly enacted  by  the  statute  1  Henry  V.  cap.  1.  But  already  in  the  time  of 
Elizabeth  the  requirement  was  not  enforced ;  and  in  1681  Lord  Chief-.Justice 
Pemberton  ruled  that  "little  regard  was  to  be  had  to  that  ancient  statute  1 
Henry  V.  forasmuch  as  common  practice  hath  been  ever  since  to  the  con- 
trary." Tlie  statute  was  repealed  by  14  Geo.  III.  cap.  50. — See  Anson,  Law 
and  Custom  of  the  Constitution,  vol.  i.  p.  83;  Stubbs,  Constit.  Hist.,  vol.  iii. 
p.  424.  Dr.  Stubbs  observes  that  the  object  of  requiring  residence  in  early 
times  was  to  secure  "  that  the  House  of  Commons  should  be  a  really  represen- 
tative body."  Mr.  Hearn  {Government  of  Enrjland)  suggests  that  the  require- 
ment had  to  be  dropped  because  it  was  hard  to  find  country  gentlemen  (or 
indeed  burgesses)  possessing  the  legal  knowledge  and  statesmanship  which  the 
constitutional  struggles  of  the  sixteenth  and  seventeenth  centuries  demanded. 
1  When  President  Garfield  was  one  of  the  leaders  of  the  House  of  Represen- 
tatives it  happened  that  his  return  for  the  disti-ict  in  which  he  resided  became 
doubtful,  owing  to  the  strength  of  the  Democratic  party  there.  One  of  his 
friends  (to  whom  I  owe  the  anecdote),  anxious  to  make  sure  that  he  should 
somehow  be  returned  to  the  House,  went  into  the  adjoining  district  to  sound 
tlie  Republican  voters  there  as  to  the  propriety  of  running  Mr.  Garfield  for 
their  constituency.  They  laughed  at  the  notion,  "Why,  he  don't  live  in  our 
deestrict."  I  have  heard  of  a  case  in  which  a  member  of  Congress  having 
after  his  election  gone  to  live  in  a  neighbouring  district,  was  thereupon  com- 
pelled by  the  pressure  of  public  opinion  to  resign  his  seat. 


CHAP.  XIX     GENERAL  OBSERVATIONS  ON  CONGRESS  193 

plexed  by  a  divided  allegiance,  though  there  are  groups  of 
States,  such  as  those  of  the  north-west,  whose  great  industrial 
interests  are  substantially  the  same.  But  what  reason  can 
there  be  for  preventing  a  man  resident  in  one  part  of  a  State 
from  representing  another  part,  a  Philadelphian,  for  instance, 
from  being  returned  for  Pittsburg,  or  a  Bostonian  for  Lenox 
in  the  west  of  Massachusetts  ?  In  Europe  it  is  not  found  that 
a  member  is  less  active  or  successfu.1  in  urging  the  local 
interests  of  his  constituency  because  he  does  not  live  there. 
He  is  often  more  successful,  because  more  personally  influen- 
tial or  persuasive  than  any  resident  whom  the  constituency 
could  supply ;  and  in  case  of  a  conflict  of  interests  he  always 
feels  his  efforts  to  be  owing  first  to  his  constituents,  and  not 
to  the  place  in  which  he  happens  to  reside. 

The  mischief  is  twofold.  Inferior  men  are  returned,  be- 
cause there  are  many  parts  of  the  country  which  do  not  grow 
statesmen,  where  nobody, .  or  at  any  rate  nobody  desiring  to 
enter  Congress,  is  to  be  fomid  above  a  moderate  level  of  polit- 
ical capacity.  And  men  of  marked  ability  and  zeal  are  pre- 
vented from  forcing  their  Avay  in.  Such  men  are  produced 
chiefly  in  the  great  cities  of  the  older  States.  There  is  not 
room  enough  there  for  nearly  all  of  them,  but  no  other  doors 
to  Congress  are  open.  Boston,  New  York,  Philadelphia,  Bal- 
timore, could  furnish  six  or  eight  times  as  many  good  mem- 
bers as  there  are  seats  in  these  cities.  As  such  men  cannot 
enter  from  their  place  of  residence,  they  do  not  enter  at  all, 
and  the  nation  is  deprived  of  the  benefit  of  their  services. 
Careers  are  moreover  interrupted.  A  promising  politician 
may  lose  his  seat  in  his  own  district  through  some  fluctuation 
of  opinion,  or  perhaps  because  he  has  offended  the  local  wire- 
pidlers  by  too  much  independence.  Since  he  cannot  find  a  seat 
elsewhere  he  is  stranded ;  his  political  life  is  closed,  while  other 
young  men  inclined  to  independence  take  warning  from  his  fate. 
Changes  in  the  State  laws  would  not  remove  the  evil,  for  the 
habit  of  choosing  none  but  local  men  is  rooted  so  deeply  that  it 
would  probably  long  survive  the  abolition  of  a  restrictive  law, 
and  it  is  just  as  strong  in  States  where  no  such  law  exists.^ 

1  In  Maryland,  a  State  almost  divided  into  two  parts  by  Chesapeake  Bay,  it 
is  the  invariable  practice  that  one  of  the  two  senators  should  be  chosen  from 
the  residents  east  of  the  bay,  the  other  from  those  of  the  western  shore. 
VOL.  I  O 


194  THE   NATIONAL   GOVERNMENT 


II.  Every  senator  and  representative  receives  a  salary  at 
present  fixed  at  $5000  (£1000)  per  annum,  besides  an  allow- 
ance (called  mileage)  of  20  cents  (lOd.)  per  mile  for  travelling 
expenses  to  and  from  Washington,  and  $125  (£25)  for  sta- 
tionery. The  salary  is  looked  upon  as  a  matter  of  course.  It 
was  not  introduced  for  the  sake  of  enabling  working  men  to 
be  returned  as  members,  but  on  the  general  theory  that 
all  public  work  ought  to  be  paid  for.^  The  reasons  for  it 
are  stronger  than  in  England  or  France,  because  the  distance 
to  Washington  from  most  parts  of  the  United  States  is  so  great, 
and  the  attendance  required  there  so  continuous,  that  a  man 
cannot  attend  to  his  profession  or  business  while  sitting  in 
Congress.  If  he  loses  his  livelihood  in  serving  the  community, 
the  community  ought  to  compensate  him,  not  to  add  that  the 
class  of  persons  whose  private  means  put  them  above  the  need 
of  a  lucrative  calling,  or  of  compensation  for  interrupting  it,  is 
comparatively  small  even  now,  and  hardly  existed  when  the 
Constitution  was  framed.  Cynics  defend  the  payment  of  con- 
gressmen on  another  ground,  viz.  that  "  they  would  steal 
worse  if  they  didn't  get  it,"  and  would  make  politics,  as  Napo- 
leon made  war,  support  itself.  Be  the  thing  bad  or  good,  it  is 
at  any  rate  necessary,  so  that  no  one  talks  of  abolishing  it. 
For  that  reason  its  existence  furnishes  no  argument  for  its 
introduction  into  a  small  country  with  a  large  leisured  and 
wealthy  class.  In  fact,  the  conditions  of  European  countries 
are  so  different  from  those  of  America  that  one  must  not  cite 
American  experience  either  for  or  against  the  remuneration  of 
legislative  work.  I  do  not  believe  that  the  practice  works  ill 
by  preventing  good  men  from  entering  politics,  for  they  feel 
no  more  delicacy  in  accepting  their  $5000  than  an  English 
duke  does  in  drawing  his  salary  as  a  secretary  of  state.  It 
may  strengthen  the  tendency  of  members  to  regard  themselves 
as  mere  delegates,  but  that  tendency  has  other  and  deeper 
roots.  It  contributes  to  keep  up  a  class  of  professional  poli- 
ticians, for  the  salary,  though  small  in  comparison  with  the 
incomes  earned  by  successful  merchants  or  lawyers,  is  a  prize 
to  men  of   the  class  whence  professional  politicians  mostly 

1  Benjamin  Franklin  argued  strongly  in  the  Convention  of  1787  against  this 
theory,  hut  found  little  support.  See  his  remarkable  speech  iu  Mr.  John  Bige- 
low's  Life,  of  Franklin,  vol.  iii.  p.  oS9. 


CHAP.  XIX     GENERAL  OBSERVATIONS  ON  CONGRESS  195 

come.  But  those  European  writers  who  describe  it  as  the 
formative  cause  of  that  class  are  mistaken.  That  chiss  Avould 
have  existed  had  members  not  been  paid,  woukl  continue  to 
exist  if  payment  were  withdrawn.  On  the  other  hand,  the 
benefit  which  Europeans  look  for  from  the  payment  of  legis- 
lators, viz.  the  introduction  of  a  large  number  of  representative 
working  men,  has  hitherto  been  little  desired  and  nowise  se- 
cured. Few  such  persons  appear  as  candidates  in  America; 
and  until  recently  the  working  class  has  not  deemed  itself,  nor 
acted  as,  a  distinct  body  with  special  interests.^ 

In  1873  Congress  passed  an  act  increasing  many  official 
salaries,  and  among  others  those  of  senators  and  represen- 
tatives, which  it  raised  from  $5000  to  f  7500  (£1500) .  All  the 
increases  were  to  take  effect  for  the  future  only,  except  that  of 
congressional  salaries,  which  was  made  retroactive.  This  un- 
blushing appropriation  by  Congress  of  nearly  )^200,000  to  them- 
selves roused  so  much  indignation  that  the  act,  save  as  to  the 
salaries  of  the  President  and  Federal  judges,  was  repealed  by 
the  next  Congress.     It  is  known  as  the  "  back-pay  grab." 

III.  A  congressman's  tenure  of  his  place  is  usually  short. 
Senators  are  sometimes  returned  for  two,  three,  or  even  four 
successive  terms  by  the  legislatures  of  their  States,  although  it 
may  befall  even  the  best  of  them  to  be  throAvn  out  by  a  change 
in  the  balance  of  parties,  or  by  the  intrigues  of  an  opponent. 
But  a  member  of  the  House  can  seldom  feel  safe  in  the  saddle. 
If  he  is  so  eminent  as  to  be  necessary  to  his  party,  or  if  he 
maintains  intimate  relations  with  the  leading  local  wire-pullers 
of  his  district,  he  may  in  the  eastern  and  middle,  and  still 
more  in  the  southern  States,  hold  his  ground  for  three  or  four 
Congresses,  i.e.  for  six  or  eight  years.  Few  do  more  than  this. 
In  the  West  a  member  is  fortunate  if  he  does  even  this.  Out 
there  a  seat  is  regarded  as  a  good  thing  which  ought  to  go 
round.  It  has  a  salary.  It  sends  a  man,  free  of  expense,  for 
two  winters  and  springs  to  Washington  and  lets  him  see  some- 
thing of  the  fine  world  there,  where  he  rubs  shoulders  with 
ambassadors  from  Europe.     Local  leaders  cast  sheep's  eyes  at 

1  In  Victoria  (Australia),  members  of  the  popular  house  receive  a  salary  of 
£300  a  year ;  and  jjayinent  is  the  rule  in  the  British  self-governina:  colonies.  In 
France  and  some  at  least  of  the  German  states  (though  not  in  the  Reichstag) 
representatives  are  paid.  In  Italy  they  receive  no  salary,  hut  a  free  pass  over 
the  railroads. 


\ 


196  THE   NATIONAL   GOVERNMENT 


the  seat,  and  make  more  or  less  open  bargains  between  them- 
selves as  to  the  order  in  which  they  shall  enjoy  it.  So  far 
from  its  being  a  reason  for  re-electing  a  man  that  he  has  been 
a  member  already,  it  is  a  reason  for  j^assing  him  by,  and  giving 
somebody  else  a  turn.  Eotation  in  ofB.ce,  dear  to  the  Demo- 
crats of  Jefferson's  school  a  century  ago,  still  charms  the  less 
educated,  who  see  in  it  a  recognition  of  equality,  and  have  no 
sense  of  the  value  of  special  knowledge  or  training.  They 
like  it  for  the  same  reason  that  the  democrats  of  Athens  liked 
the  choice  of  magistrates  by  lot.  It  is  a  recognition  and  appli- 
cation of  equality.  An  ambitious  congressman  is  therefore 
forced  to  think  day  and  night  of  his  re-nomination,  and  to 
secure  it  not  only  by  procuring,  if  he  can,  grants  from  the 
Federal  treasury  for  local  purposes,  and  places  for  the  relatives 
and  friends  of  the  local  wire-pullers  who  control  the  nomi- 
nating conventions,  but  also  by  sedulously  ''nursing"  the 
constituency  during  the  vacations.  No  habit  could  more  effect- 
ually discourage  noble  ambition  or  check  the  growth  of  a  class 
of  accomplished  statesmen.  There  are  few  walks  of  life  in 
which  experience  counts  for  more  than  it  does  in  parliamentary 
politics.  It  is  an  education  in  itself,  an  education  in  which 
the  qui'Ck-witted  western  American  would  make  rapid  progress 
were  he  suffered  to  remain  long  enough  at  Washington.  At 
present  he  is  not  suffered,  for  nearly  one  half  of  each  successive 
house  consists  of  new  men,  while  the  old  members  are  too  much 
harassed  by  the  trouble  of  procuring  their  re-election  to  have 
time  or  motive  for  the  serious  study  of  political  problems. 
This  is  what  comes  of  the  doctrine  that  a  member  ought  to  be 
absolutely  dependent  on  his  constituents,  and  of  the  notion 
that  politics  is  neither  a  science,  nor  an  art,  nor  even  an  occu- 
pation, like  farming  or  store-keeping,  in  which  one  learns  by 
experience,  but  a  thing  that  comes  by  nature,  and  for  which  one 
man  of  common  sense  is  as  fit  as  another. 

IV.  The  last-mentioned  evil  is  aggravated  by  the  short 
duration  of  a  Congress.  Short  as  it  seems,  the  two  years'  term 
was  warmly  opposed,  when  the  Constitution  was  framed,  as 
being  too   long.^     The   constitutions   of    the   several    States, 

1  In  the  Massachusetts  Convention  of  1788,  when  this  question  was  being  dis- 
cussed, "  General  Thomson  then  broke  out  into  tlie  followin.^;  pathetic  apos- 
trophe, '  O  ray  country,  never  give  up  your  annual  elections  :  young  men.  never 
give  up  your  jewel.'  He  apologized  for  his  zeal.  "  —  Elliot's  Debates,\ol.  ii.  p.  Hi. 


CHAP.  XIX     GENERAL  OBSERVATIONS  ON  CONGRESS         ,     197 

framed  wheu  they  shook  off  the  supremacy  of  the  British 
Crown,  all  fixed  one  year,  except  the  ultra-democratic  Connect- 
icut and  Rhode  Island,  where  under  the  colonial  charters  a 
legislature  met  every  six  months,  and  South  Carolina,  which 
had  fixed  two  years.  So  essential  to  republicanism  was  this 
principle  deemed,  that  the  maxim  "where  annual  elections 
end  tyranny  begins "  had  passed  into  a  proverb ;  and  the 
authors  of  the  Federalist  were  obliged  to  argue  that  the  limited 
authority  of  Congress,  watched  by  the  executive  on  one  side, 
and  the  State  legislatures  on  the  other,  would  prevent  so  long 
a  period  as  two  years  from  proving  dangerous  to  liberty,  while 
it  was  needed  in  order  to  enable  the  members  to  master  the  laws 
and  understand  the  conditions  of  different  parts  of  the  Union. 
At  present  the  two  years'  term  is  justified  on  the  ground 
that  it  furnishes  a  proper  check  on  the  President  by  inter- 
posing an  election  in  the  middle  of  his  term.  One  is  also  told 
that  these  frequent  elections  are  necessary  to  keep  up  popular 
interest  in  current  politics,  nor  do  some  fail  to  hint  that  the 
temptations  to  jobbing  would  overcome  the  virtue  of  members 
who  had  a  longer  term  before  them.  Where  American  opinion 
is  unanimous,  it  would  be  presumptuous  for  a  stranger  to 
dissent.  Yet  the  remark  may  be  permitted  that  the  dangers 
originally  feared  have  proved  chimerical.  There  is  no  country 
whose  representatives  are  more  dependent  on  popular  opinion, 
more  ready  to  trim  their  sails  to  the  least  breath  of  it.  The 
public  acts,  the  votes,  and  speeches  of  a  member  from  Oregon 
or  Texas  can  be  more  closely  watched  by  his  constituents  than 
those  of  a  Virginian  member  could  be  watched  in  1789.^  And 
as  the  frequency  of  elections  involves  inexperienced  members, 
the  efficiency  of  Congress  suffers. 

V.  The  numbers  of  the  two  American  houses  seem  small  to  a 
European  when  compared  on  the  one  hand  with  the  population 
of  the  country,  on  the  other  with  the  practice  of  European 
states.  The  Senate  has  88  members  against  the  British  House 
of  Lords  with  about  550,  and  the  French  Senate  with  300. 
The  House  has  (election  of  1892)  356  against  the  British 
House  of  Commons  with  670,  and  the  French  and  Italian 
Chambers  with  584  and  508  respectively. 

1  Of  course  his  conduct  in  committee  is  rarely  kno\vii,  but  I  doulit  whetlier 
the  shortness  of  the  term  makes  him  more  scrupulous. 


198     .  THE   NATIONAL  GOVEKNMENT 


The  Americans,  however,  doubt  whether  both  their  Houses 
have  not  already  become  too  large.  They  began  with  26  in 
the  Senate,  65  in  the  House,  numbers  then  censured  as  too 
small,  but  which  worked  well,  and  gave  less  encouragement  to 
idle  talk  and  vain  display  than  the  crowded  halls  of  to-day. 
The  inclination  of  wise  men  is  to  stop  further  increase  when 
the  number  of  400  has  been  reached,  for  they  perceive  that  the 
House  already  suffers  from  disorganization,  and  fear  that  a 
much  larger  one  would  prove  unmanageable.^ 

VI.  American  congressmen  are  more  assiduous  in  their 
attendance  than  the  members  of  most  European  legislatures. 
The  great  majority  not  only  remain  steadily  at  Washington 
through  the  session,  but  are  usually  to  be  found  in  the  Capitol, 
often  in  their  Chamber  itself,  while  a  sitting  lasts.  There  is 
therefore  comparatively  little  trouble  in  making  the  quorum 
of  one  half,^  except  when  the  minority  endeavours  to  prevent 

1  There  is  force  ia  the  following  observations  which  I  copy  from  the  54th  and 
57th  numbers  of  tlie  Federalist :  —  "A  certain  number  at  least  seems  necessary 
to  secure  the  benefits  of  free  consultation  and  discussion,  and  to  guard  against 
too  easy  a  combination  for  improper  purposes ;  as  on  the  other  hand,  the  num- 
ber ought  to  be  kept  within  a  certain  limit  in  order  to  avoid  the  confusion  aud 
intemperance  of  a  multitude.  In  all  very  numerous  assemblies,  of  whatever 
characters  composed,  passion  never  fails  to  wrest  the  sceptre  from  reason.  Had 
every  Athenian  citizen  been  a  Socrates,  every  Athenian  assembly  would  still 
have  been  a  mob.  ...  In  all  legislative  assemblies,  the  greater  the  number 
comprising  them  may  be,  the  fewer  will  be  the  men  who  will  in  fact  direct  their 
proceedings.  The  larger  the  number,  the  greater  will  be  the  proportion  of 
members  of  limited  information  and  of  weak  capacities.  Now  it  is  precisely 
on  characters  of  this  description  that  the  eloquence  and  address  of  the  few  are 
known  to  act  with  all  their  force.  In  the  ancient  republics  where  the  whole 
body  of  the  people  assembled  in  person,  a  single  orator,  or  an  artful  statesman, 
was  generally  seen  to  rule  with  as  complete  a  sway  as  if  a  sceptre  had  been 
placed  in  his  single  hand.  On  the  same  principle  the  more  multitudinous  a 
representative  assembly  may  l)e  rendered,  the  more  it  will  partake  of  the  in- 
firmities incident  to  collective  meetings  of  the  people.  Ignorance  will  be  the 
dupe  of  cunning,  and  passion  the  slave  of  sophistry  and  declamation.  The 
people  can  never  err  more  than  in  supposing  that  by  multiplying  their  repre- 
sentatives beyond  a  certain  limit  they  strengthen  the  barrier  against  the  gov- 
ernment of  a  few.  Experience  will  for  ever  admonish  them  that,  on  the 
contrary,  after  securing  a  certain  number  for  the  purposes  of  safety,  of  local 
information,  and  of  diffusing  sympathy  ivith  the  ivhole  society,  they  will 
counteract  their  own  views  by  every  addition  to  tlieir  representatives." 

It  is  true  that  the  House  of  Commons  with  670  members  has  not  been  found 
unmanageable.  Tlie  number  present,  however,  rarely  exceeds  450 ;  and  there 
is  sitting  accommodation  on  the  floor  for  only  360. 

2  Though  sometimes  the  sergeant-at-arms  is  sent  round  Washington  with  a 
carriage  to  fetch  members  down  from  their  residences  to  the  Capitol. 


CHAP.  XIX     GENERAL  OBSERVATIONS  ON  CONGRESS  199 

its  being  made,  whereas  in  England  the  House  of  Lords,  whose 
quorum  is  three,  has  seldom  thirty  peers  present,  and  the  House 
of  Commons  often  finds  a  dithculty,  especially  during  the  din- 
ner hour,  in  securing  its  modest  quorum  of  forty.^  This  require- 
ment of  a  high  quorum,  which  is  prescribed  in  the  Constitution, 
has  doubtless  helped  to  secure  a  good  attendance.  Other  causes 
are  the  distance  from  Washington  of  the  residences  of  most 
members,  so  that  it  is  not  worth  while  to  take  the  journey 
home  for  a  short  sojourn,  and  the  fact  that  very  few  attempt 
to  carry  on  any  regular  business  or  profession  while  the  session 
lasts.  Those  who  are  lawyers,  or  merchants,  or  manufacturers, 
leave  their  work  to  partners ;  but  many  are  politicians  and 
nothing  else.  In  Washington,  a  city  without  commerce  or 
manufactures,  political  or  semi-political  intrigue  is  the  only 
gainful  occupation  possible ;  for  the  Supreme  Court  practice 
employs  only  a  few  leading  barristers.  The  more  democratic 
a  country  is,  so  much  the  more  regular  is  the  attendance,  so 
much  closer  the  attention  to  the  requests  of  constituents  which 
a  member  is  expected  to  render.^  Apart  from  that  painful 
duty  of  finding  places  for  constituents  which  consumes  so 
much  of  a  congressman's  time,  his  duties  are  not  heavier 
than  those  of  a  member  of  the  English  Parliament  who  de- 
sires to  keep  abreast  of  current  questions.  The  sittings  are 
neither  so  long  nor  so  late  as  those  of  the  House  of  Commons ; 
the  questions  that  come  up  not  so  multifarious,  the  blue  books 
to  be  read  less  numerous,  the  correspondence  (except  about 
places)  less  troublesome.  The  position  of  senator  is  more 
onerous  than  that  of  a  member  of  the  House,  not  only  because 
his  whole  State,  and  not  merely  a  district,  has  a  direct  claim 
upon  him,  but  also  because,  as  one  of  a  smaller  body,  he  incurs 
a  larger  individual  responsibility,  and  sits  upon  two  or  more 
committees  instead  of  on  one  only. 

VII.  The  want  of  opportunities  for  distinction  in  Congress  is 
one  of  the  causes  which  make  a  political  career  unattractive  to 

1  Oliver  Cromwell's  House  of  360  members,  including  30  from  Scotland  and 
30  from  Ireland,  had  a  quorum  of  GO. 

2  Before  the  Reform  Bill  of  1832  there  were  rarely  more  than  200  members 
present  in  the  House  of  Commons,  and  it  usually  sat  for  two  or  three  hours 
only  in  each  day.  One  of  the  members  for  Hampshire,  about  1820,  sat  for 
tliirteen  years,  being  in  perfect  health,  and  was  only  thrice  in  the  House.  Nor 
was  this  deemed  a  very  singular  case. 


200  THE  NATIONAL  GOVERNMENT 


most  Americans.^     It  takes  a  new  member  at  least  a  session  to 
learn  the  procedure  of  the  House.     Full  dress  debates  are  rare, 
newspaper  reports  of  speeches  delivered  are  curt  and  little  read. 
The  most  serious  work  is  done  in  committees ;  it  is  not  known 
to  tlie  world,  and  much  of  it.  results  in  nothing,  because  many 
bills  which  a  committee  has  considered  are  perhaps  never  even 
voted  on  by  the  House.     A  place  on  a  good  House  committee 
is  to  be  obtained  by  favour,  and  a  high-spirited  man  may  shrink 
from  applying  for  it  to  the  Speaker.    Ability,  tact,  and  industry 
make  their  way  in  the  long  run  in  Congress,  as  they  do  every- 
where else.     But  in  Congress  there  is,  for  most  men,  no  long 
run.     Only  very  strong  local  influence,  or  some  remarkable 
party  service  rendered,  Avill  enable  a  member  to  keep  his  seat 
through  two  or  three  successive  congresses.    Nowhere  therefore 
does  the  zeal  of  a  yo\mg  politician  sooner  wax  cold  than  in  the 
House  of  Representatives.     Unfruitful  toil,  the  toil  of  turning 
a  crank  which  does  nothing  but  register  its  own  turnings,  or  of 
writing  contributions  which  an  editor  steadily  rejects,  is  of  all 
things  the  most  disheartening.     It  is  more  disheartening  than 
the  non-requital  of  merit;  for  that  at  least  spares  the  self- 
respect  of  the  sufferer.     Now  toil  for  the  public  is  usually 
unfruitful  in  the   House   of   Eepresentatives,   indeed   in   all 
Houses.     But  toil  for  the  pecuniary  interests  of  one's  constitu- 
ents and  friends  is  fruitful,  for  it  obliges  people,  it  wins  the 
reputation  of  energy  and  smartness,  it  has  the  promise  not  only 
of  a  re-nomination,  but  of  that  possible  seat  in  the  Senate  which 
is  the  highest  ambition  of  the  congressman.     Power,  fame,  per- 
haps even  riches,  sit  upon  that  pinnacle.     But  the  thin  spun 
life  is  usually  slit  before  the  fair  guerdon  has  been  found.     Few 
young  men  of  high  gifts  and  fine  tastes  look  forward  to  enter- 
ing public  life,  for  the  probable  disappointments  and  vexations 
of  a  life  in  Congress  so  far  outweigh  its  attractions  that  nothing 
but  a  strong  sense  of  public  duty  suliices  to  draw  such  men 
into  it.     Law,  education,  literature,  the  higher  walks  of  com- 
merce, finance,  or  railway  work,  offer  a  better  prospect  of  use- 
fulness, enjoyment,  or  distinction. 

Inside  Washington,  the  representative  is  dwarfed   by  the 
senator  and  the  Federal  judges.     Outside  Washington  he  enjoys 

1  See  also  Chapter  LVIII.  posi. 


CHAP.  XIX     GENERAL  OBSERVATIONS  ON  CONGRESS  201 


no  great  social  consideration,^  especially  in  the  aSTorthern  States, 
for  in  the  South  his  position  retains  some  of  its  old  credit. 
His  opinion  is  not  quoted  with  respect.  He  seems  to  move 
abont  under  a  prima  fade  suspicion  of  being  a  jobber,  and  to 
feel  that  the  burden  of  proof  lies  on  him  to  show  that  the  cur- 
rent jests  on  this  topic  do  not  apply  to  him.  Eich  men  there- 
fore do  not  seek,  as  in  England,  to  enter  the  legislature  in  order 
that  they  may  enter  society.  They  will  get  no  entree  which 
they  could  not  have  secured  otherwise.  Kor  is  there  any 
opportunity  for  the  exercise  of  those  social  influences  which  tell 
upon  members,  and  still  more  upon  members'  wives  and  daugh- 
ters, in  European  legislatures.  It  may  of  course  be  worth  while 
to  "  capture  "  a  particular  senator,  and  for  that  purpose  to  begin 
by  capturing  his  wife.  But  the  salon  plays  no  conspicuous  part 
in  American  public  life. 

The  country  does  not  go  to  Congress  to  look  for  its  presiden- 
tial candidates  as  England  looks  to  Parliament  for  its  prime 
ministers.  The  opportunities  by  which  a  man  can  win  distinc- 
tion there  are  few.  He  does  not  make  himself  familiar  to  the 
eye  and  ear  of  the  people.  Congress,  in  short,  is  not  a  focus  of 
political  life  as  are  the  legislatures  of  France,  Italy,  and  Eng- 
land. Though  "it  has  become  more  powerful  against  the  several 
States  than  it  was  formerly,  though  it  has  extended  its  arms  in 
every  direction,  and  encroached  upon  the  executive,  it  has  not 
become  more  interesting  to  tlie  people,  nor  strengthened  its 
hold  on  their  respect  and  affection. 

VIII.  Neither  in  the  Senate  nor  in  the  House  are  there  any 
recognized  leaders.  There  is  no  ministry,  no  ex-ministry  lead- 
ing an  opposition,  no  chieftains  at  the  head  of  definite  groups 
who  follow  their  lead,  as  the  Irish  Nationalist  members  in  the 
British  Parliament  followed  Mr.  Parnell,  and  a  large  section 
in  the  French  and  German  chambers  followed  M.  Clemenceau 
and  Dr.  Windthorst.  Hence  there  exists  no  regularly  working 
agency  for  securing  either  that  members  shall  be  apprised  of 

1  A  few  years  ago  an  eminent  Englishman,  visiting  one  of  the  colleges  for 
women  in  New  England,  and  wishing  to  know  something  of  the  social  stand- 
ing of  the  stndents,  remarked,  "  I  suppose  you  have  a  good  many  young  ladies 
here  helonging  to  the  best  families,  daughters  of  members  of  Congress  and  so 
forth?"  The  question  excited  so  much  amusement  that  it  was  repeated  to 
me  months  afterwards  not  only  as  an  instance  of  English  ignorance  but  as  a 
merry  jest. 


202  THE   NATIONAL   GOVERNMENT  part  i 

the  divisions  to  be  expected,  or  that  they  shall  vote  in  those 
divisions  in  a  particular  way. 

To  any  one  familiar  with  the  methods  of  the  English  Parlia- 
ment this  seems  incomprehensible.  How,  he  asks,  can  business 
go  on  at  all,  how  can  each  party  make  itself  felt  as  a  party 
with  neither  leader  nor  Whips  ? 

I  have  mentioned  the  Whips.  Let  me  say  a  word  on  this 
vital,  yet  even  in  England  little  appreciated,  part  of  the  ma- 
chinery of  constitutional  government.  Each  party  in  the 
House  of  Commons  has,  besides  its  leaders,  a  member  of  the 
House  nominated  by  the  chief  leader  as  his  aide-de-camp,  and 
called  the  whipper-in,  or,  for  shortness,  the  whip.  The  whip's 
duties  are  (1)  to  inform  every  member  belonging  to  fhe  party 
when  an  important  division  may  be  expected,  and  if  he  sees 
the  member  in  or  about  the  Hovise,  to  keep  him  there  until  the 
division  is  called;  (2)  to  direct  the  members  of  his  own  party 
how  to  vote ;  (3)  to  obtain  pairs  for  them  if  they  cannot  be 
present  to  vote;  (4)  to  "tell,"  i.e.  count  the  members  in  every 
party  division;  (o)  to  "keep  touch"  of  opinion  within  the 
party,  and  convey  to  the  leader  a  faithful  impression  of  that 
opinion,  from  which  the  latter  can  judge  how  far  he  may  count 
on  the  support  of  his  whole  party  in  any  course  he  proposes  to 
take.  A  member  in  doubt  how  he  shall  vote  on  a  question 
with  regard  to  which  he  has  no  opinion  of  his  own,  goes  to  the 
whip  for  counsel.  A  member  who  without  grave  cause  stays 
away  unpaired  from  an  important  division  to  which  the  whip 
has  duly  summoned  him  is  guilty  of  a  misdemeanour  only  less 
flagrant  than  that  of  voting  against  his  party.  A  ministerial 
whip  is  further  bound  to  "  keep  a  house,"  i.e.  to  secure  that 
when  government  business  is  being  considered  there  shall  al- 
ways be  a  quorum  of  members  present,  and  of  course  also  to 
keep  a  majority,  i.e.  to  have  within  reach  a  number  of  support- 
ers sufficient  to  give  the  ministry  a  majority  on  any  minis- 
terial division.^     Without  the  constant  presence  and  activity 

1  That  which  was  at  one  time  the  chief  function  of  the  ministerial  whip,  viz. 
to  pay  members  for  the  votes  they  gave  in  support  of  the  government,  has 
l)cen  extinct  for  about  a  century.  He  is  still,  however,  the  recognized  organ 
for  handling  questions  of  political  patronage,  and  is  therefor*  called  the 
Patronage  Secretary  to  the  Treasury.  People  who  want  places  for  their 
friends,  or  titles  for  themselves,  still  address  their  requests  to  him,  which  he 
communicates  to  the  prime  minister  with  his  opinion  as  to  whether  the  appli- 


CHAP.  XIX     GENERAL  OBSERVATIONS  ON  CONGRESS  203 

of  the  ministerial  whip  the  wheels  of  government  could  not  go 
on  for  a  day,  because  the  ministry  would  be  exposed  to  the 
risk  of  casual  defeats  Mdiich  would  destroy  their  credit  and 
might  involve  their  resignation.  Similarly  the  Opposition,  and 
any  third  or  fourth  party,  find  it  necessary  to  have  their  whip 
or  whips,  because  it  is  only  thus  that  they  can  act  as  a  party, 
guide  their  supporters,  and  bring  their  full  strength  to  bear  on 
a  division.  Hence  when  a  new  party  is  formed,  its  first  act, 
that  by  which  it  realizes  and  proclaims  its  existence,  is  to  name 
whips,  to  whom  its  adherents  may  go  for  counsel,  and  who 
may  in  turn  receive  their  suggestions  as  to  the  proper  strategy 
for  the  party  to  adopt.^  So  essential  are  these  officers  to  the 
discipline  of  English  parliamentary  armies  that  an  English 
politician's  first  question  when  he  sees  Congress  is,  <' Where 
are  the  whips  ?  "  his  next,  "  How  in  the  world  do  you  get  on 
without  them  ?  " 

The  answer  to  this  question  is  threefold.  Whips  are  not  so 
necessary  at  Washington  as  at  Westminster.  A  sort  of  sub- 
stitute for  them  has  been  devised.  Congress  does  to  some  ex- 
tent suffer  from  the  inadequacy  of  the  substituted  device. 

A  division  in  Congress  has  not  the  importance  it  has  in  the 
House  of  Commons.  There  it  may  throw  out  the  ministry. 
In  Congress  it  never  does  more  than  affirm  or  negative  some 
particular  bill  or  resolution.  Even  a  division  in  the  Senate 
which  involves  the  rejection  of  a  treaty  or  of  an  appointment 
to  some  great  office,  does  not  disturb  the  tenure  of  the  execu- 
tive. Hence  it  is  not  essential  to  the  majority  that  its  full 
strength  shoidd  be  always  at  hand,  nor  has  a  minority  party 
any  great  prize  set  before  it  as  the  result  of  a  successful  vote. 

Questions,  however,  arise  in  which  some  large  party  interest 
is  involved.  There  may  be  a  bill  by  which  the  party  means  to 
carry  out  its  main  views  of  policy  or  perhaps  to  curry  favour 
with  the  people,  or  a  resolution  whereby  it  hopes  to  damage  a 

cant's  party  services  justify  the  request.  Nowadays  this  patronage  has  no 
great  political  importance. 

1  Even  parties  formed  with  a  view  to  particular,  and  probably  transitory 
issues,  such  as  that  of  the  English  Auti-Home-Kule  Liberals  in  the  House  of 
Commons,  appoint  one  or  more  of  their  members  as  whips,  because  they  could 
not  otherwise  act  with  that  effect  which  only  liabitual  concert  gives.  Each 
party  has  its  whips  in  the  House  of  Lords  also,  but  as  divisions  there  have  less 
political  signiticance  their  functions  are  less  important. 


204  THE   NATIONAL   GOVERNMENT  part  i 

hostile  executive.  In  such  cases  it  is  important  to  bring  up 
every  vote.  Accordingly  at  the  beginning  of  every  Congress  a 
caucus  committee  is  elected  by  the  majority,  and  it  becomes  the 
duty  of  the  cliairman  and  secretary  of  this  committee  (to  whom, 
in  the  case  of  a  party  bill  svipported  by  the  majority,  there  is 
added  the  chairman  of  the  committee  to  which  that  bill  has 
been  referred,  necessarily  a  member  of  the  majority)  to  act  as 
whips,  i.e.  to  give  notice  of  important  divisions  by  sending  out  a 
"call"  to  members  of  the  party,  and  to  take  all  requisite  steps 
to  have  a  quorum  and  a  majority  present  to  push  through  the 
bill  or  resolution  to  which  the  party  stands  committed.  Muta- 
tis mutandis  (for  of  course  it  is  seldom  an  object  with  the 
minority  to  secure  a  quorum) ,  the  minority  take  the  same  course 
to  bring  up  their  men  on  important  divisions.  In  cases  of 
gravity  or  doubt,  Avhere  it  is  thought  prudent  to  consult  or  to 
restimulate  the  party,  the  caucus  committee  convokes  a  caucus, 
i.e.  a  meeting  of  the  whole  party^  at  which  the  attitude  to  be 
assumed  by  the  party  is  debated  with  closed  doors,  and  a  vote 
taken  as  to  the  course  to  be  adopted.^  By  this  vote  every 
member  of  the  party  is  deemed  bound,  just  as  he  would  be  in 
England  by  the  request  of  the  leader  conveyed  through  the 
whip.  Disobedience  cannot  be  punished  in  Congress  itself, 
except  of  course  by  social  penalties ;  but  it  endangers  the  seat 
of  the  too  independent  member,  for  the  party  managers  at 
Wasliington  Avill  communicate  with  the  party  managers  in  his 
district,  and  the  latter  Avill  probably  refuse  to  re-nominate  him 
at  the  next  election.  The  most  important  caucus  of  a  Con- 
gress is  that  held  at  the  opening  to  select  the  party  candidate 
for  the  speakership,  selection  by  the  majority  being  of  course 
equivalent  to  election.  As  the  views  and  tendencies  of  the 
Speaker  determine  the  composition  of  the  committees,  and 
thereby  the  course  of  legislation,  his  selection  is  a  matter  of 
supreme  importance,  and  is  preceded  by  weeks  of  intrigue  and 
canvassing. 

1  An  experienced  senator  told  me  that  the  Senate  caucus  of  his  party  used 
to  meet  on  an  average  twice  a  month,  the  House  caucus  less  frequently.  A 
leading  member  of  the  House  said  that  a  "  call  "  would  be  sent  out,  on  an  aver- 
age, for  about  six  measures  in  a  session,  i.e.  from  ten  to  twenty  times  alto- 
gether, according  to  the  resistance  offered  to  the  measures  of  the  majority. 
Sometimes  a  "  call  "  of  the  majority  is  signed  by  the  Speaker.  General  meet- 
ings of  a  party  in  Parliament  are  mucli  less  conimou  in  England. 


CHAP.  XIX     GENERAL  OBSERVATIONS  ON  CONGRESS  205 

The  process  of  "  going  into  caucus  "  is  the  regular  American 
substitute  for  recognized  leadership,  and  has  the  advantage  of 
seeming  more  consistent  with  democratic  equality,  because 
every  member  of  the  party  has  in  theory  equal  weight  in  the 
party  meeting.  It  is  used  whenever  a  line  of  policy  has  to  be 
settled,  or  the  whole  party  to  "be  rallied  for  a  particular  party 
division.  But  of  course  it  cannot  be  employed  every  day  or 
for  every  bill.  Hence  when  no  party  meeting  has  issued  its 
orders,  a  member  is  comparatively  free  to  vote  as  he  pleases, 
or  rather  as  he  thinks  his  constituents  please.  If  he  knows 
nothing  of  the  matter,  he  may  take  a  friend's  advice,  or  vote 
as  he  hears  some  prominent  man  on  his  own  side  vote.  Any- 
how, his  vote  is  doubtful,  unpredictable;  and  consequently 
divisions  on  minor  questions  are  uncertain.  This  is  a  further 
reason,  added  to  the  power  of  the  standing  committees,  why 
there  is  a  want  of  consistent  policy  in  the  action  of  Congress. 
As  its  leading  men  have  comparatively  little  authority,  and 
there  are  no  means  whereby  a  leader  could  keep  his  party  to- 
gether on  ordinary  questions,  so  no  definite  ideas  run  through 
its  conduct  and  express  themselves  in  its  votes.  It  moves  in 
zig-zags. 

The  freedom  thus  enjoyed  by  members  on  minor  questions 
has  the  interesting  result  of  preventing  dissensions  and  splits 
in  the  parties.  There  are  substances  which  cohere  best  when 
their  contact  is  loose.  Fresh  fallen  snow  keeps  a  smooth  sur- 
face even  on  a  steep  slope,  but  when  by  melting  and  regelation 
it  has  become  ice,  cracks  and  rifts  begin  to  appear.  A  loose 
hung  carriage  will  hold  together  over  a  road  whose  roughness 
would  strain  and  break  a  more  solid  one.  Hence  serious  differ- 
ences of  opinion  may  exist  in  a  congressional  party  without 
breaking  its  party  unity,  for  nothing  more  is  needed  than  that 
a  solid  front  should  be  presented  on  the  occasions,  few  in  each 
session,  when  a  momentous  division  arrives.  The  appearance 
of  agreement  is  all  the  more  readily  preserved  because  there  is 
little  serious  debating,  so  that  tlie  advocates  of  one  view  seldom 
provoke  the  other  section  of  their  party  to  rise  and  contradict 
them  ;  while  a  member  who  dissents  from  the  bulk  of  his  party 
on  an  important  issue  is  slow  to  vote  against  it,  because  he  has 
little  chance  of  defining  and  defending  his  position  by  an  ex- 
planatory speech. 


206  THE   NATIONAL   GOVERNMENT  part  i 

The  congressional  caucus  has  in  troublous  times  to  be  sup- 
plemented by  something  like  obedience  to  regular  leaders.  Mr. 
Thaddeus  Stevens,  for  instance,  led  with  recognized  authority 
the  majority  of  the  House  in  its  struggle  with  President  An- 
drew Johnson.  The  Senate  is  rather  more  jealous  of  the  equal- 
ity of  all  its  members.  No  senator  can  be  said  to  have  any 
authority  beyond  that  of  exceptional  talent  and  experience; 
and  of  course  a  senatorial  caucus,  since  it  rarely  consists  of 
more  than  fifty  persons,  is  a  better  working  body  than  a  House 
caucus,  which  may  exceed  two  hundred.^ 

The  European  reader  may  be  perplexed  by  the  apparent 
contradictions  in  what  has  been  said  regarding  the  party 
organization  of  Congress.  "  Is  the  American  House  after 
all,"  he  will  ask,  "  more  or  less  a  party  body  than  the  British 
House  of  Commons  ?  Is  the  spirit  of  party  more  or  less  strong 
in  Congress  than  in  the  American  people  generally  ?  " 

For  the  purpose  of  serious  party  issues  the  House  of  Kepre- 
sentatives  is  fully  as  much  a  party  body  as  the  House  of 
Commons.  A  member  voting  against  his  party  on  such  an 
issue  is  more  certain  to  forfeit  his  party  reputation  and  his 
seat  than  is  an  English  member.  But  for  the  purpose  of 
ordinary  questions,  of  issues  not  involving  party  fortunes,  a 
representative  is  less  bound  by  party  ties  than  an  English 
member,  because  he  has  neither  leaders  to  guide  him  by  their 
speeches  nor  whips  by  their  private  instructions.  The  appar- 
ent gain  is  that  a  wider  field  is  left  for  independent  judgment 
on  non-partisan  questions.  The  real  loss  is  that  legislation 
becomes  weak  and  inconsistent.  This  conclusion  is  not  encour- 
aging to  those  who  expect  us  to  get  rid  of  party  in  our  legis- 
latures. A  deliberative  assembly  is,  after  all,  only  a  crowd  of 
men ;  and  the  more  intelligent  a  crowd  is,  so  much  the  more 
numerous  are  its  volitions ;  so  much  greater  the  difficulty  of 
agreement.  Like  other  crowds,  a  legislature  must  be  led  and 
nded.  Its  merit  lies  not  in  the  independence  of  its  members, 
but  in  the  reflex  action  of  its  opinion  upon  the  leaders,  in  its 

1  At  one  time  the  congressional  caucus  i^layed  in  American  history  a  great 
part  which  it  has  now  renounced.  From  1800  till  1824  party  meetings  of  sena- 
tors and  representatives  were  held  which  nominated  the  party  candidates  for 
the  presidency,  who  were  then  accepted  by  each  party  as  its  regular  candi- 
dates. In  1828  tlie  State  legislatures  made  these  nominations,  and  in  1832  the 
present  system  of  national  conventions  (see^josf,  in  Vol.  II.)  was  introduced. 


CHAP.  XIX      GENERAL  OBSERVATIONS  ON  CONGRESS  207 

willingness  to  defer  to  them  in  minor  matters,  reserving  dis- 
obedience for  the  issues  in  which  some  great  principle  over- 
rides both  the  obligation  of  deference  to  established  authority 
and  the  respect  due  to  special  knowledge. 

The  above  remarks  answer  the  second  question  also.  The 
spirit  of  party  may  seem  to  be  weaker  in  Congress  than  in  the 
people  at  large.  But  this  is  only  because  the  questions  which 
the  people  decide  at  the  polls  are  always  questions  of  choice 
between  candidates  for  office.  These  are  definite  questions, 
questions  eminently  of  a  party  character,  because  candidates 
represent  in  the  America  of  to-day  not  principles  but  parties. 
Whenever  a  vote  upon  persons  occurs  in  Congress,  Congress 
gives  a  strict  party  vote.  Were  the  people  to  vote  at  the  polls 
on  matters  not  explicitly  comprised  within  a  party  platform, 
there  would  be  the  same  uncertainty  as  Congress  displays. 
The  habit  of  joint  action  which  makes  the  life  of  a  party  is 
equally  intense  in  every  part  of  the  American  system.  But 
in  England  the  existence  of  a  Ministry  and  Opposition  in 
Parliament  sweeps  within  the  circle  of  party  action  many 
topics  which  in  America  are  left  outside,  and  therefore  Con- 
gress seems,  but  is  not,  less  permeated  than  Parliament  by 
party  spirit. 


CHAPTER   XX 

THK    RELATIONS    OF    CONGRESS    TO    THE    PRESIDENT^ 

So  far  as  they  are  legislative  bodies,  the  House  and  the 
Senate  have  similar  powers  and  stand  in  the  same  relation  to 
the  execiitive.^  We  may  therefore  discuss  them  together,  or 
rather  the  reader  may  assume  that  whatever  is  said  of  the 
House  as  a  legislature  applies  to  the  Senate.^ 

Although  the  Constitution  forbids  any  Federal  official  to  be 
a  member  of  either  the  House  or  the  Senate,  there  is  nothing 
in  it  to  prevent  officials  from  speaking  there ;  as  indeed  there 
is  nothing  to  prevent  either  House  from  assigning  places  and 
the  right  to  speak  to  any  one  whom  it  chooses.  In  the  early 
days  Washington  came  down  and  delivered  his  opening  speech. 
Occasionally  he  remained  in  the  Senate  during  a  debate,  and 
even  expressed  his  opinion  there.  When  Hamilton,  the  first 
secretary  of  the  treasury,  prepared  his  famous  report  on  the 
national  finances,  he  asked  the  House  whether  they  would  hear 
him  speak  it,  or  would  receive  it  in  writing.  They  chose  the 
latter  course,  and  the  precedent  then  set  has  been  followed  by 
subsequent  ministers,*  while  that  set  in  1801  by  President 

1  Thf!  relations  of  the  various  organs  of  government  to  one  another  in  the 
United  States  are  so  interesting  and  so  unlike  those  which  exist  in  most 
European  countries,  that  I  have  found  it  necessary  to  descrihe  them  with 
some  minuteness,  and  from  several  points  of  view.  In  this  chapter  an  account 
is  given  of  the  actual  working  relations  of  the  President  and  Congress ;  in  the 
next  cliapter  the  general  theory  of  the  respective  functions  of  the  executive 
and  legislative  departments  is  examined,  and  the  American  view  of  the  nature 
of  these  functions  explained ;  while  in  Chapter  XXV.  the  American  system  as 
a  whole  is  compared  with  the  so-called  "  cabinet  system  "of  Britain  and  her 
colonies. 

2  The  House  has  the  exclusive  initiative  in  revenue  bills ;  but  this  privilege 
does  not  affect  what  follows. 

3  The  executive  functions  of  the  Senate  have  been  discussed  in  Chapter  XI. 
■•  A  committee  of  the  Senate  reported  in  favour  of  giving  tlie  right  of  speech 

to  ministers  (see  note  to  Chapter  IX.  ante) ;   and  this  was  provided  in  the 
208 


CHAP.  XX  CONGRESS   AND   THE   PRESIDENT  209 

Jefferson  when  he  transmitted  his  message  in  writing  instead 
of  delivering  a  speech,  has  been  similarly  respected  by  all  his 
successors.  Thus  neither  House  now  hears  a  member  of  the 
executive ;  and  when  a  minister  appears  before  a  committee,  he 
appears  only  as  a  witness  to  answer  questions,  not  to  state  and 
argue  his  own  case.  There  is  therefore  little  direct  intercourse 
between  Congress  and  the  administration,  and  no  sense  of 
interdependence  and  community  of  action  such  as  exists  in 
other  parliamentary  countries.^  Be  it  remembered  also  that  a 
minister  may  never  have  sat  in  Congress,  and  may  therefore 
be  ignorant  of  its  temper  and  habits.  Six  members  of  Mr. 
Cleveland's  cabinet,  in  1888,  had  never  had  a  seat  in  either 
House.  The  President  himself,  although  he  has  been  voted 
into  office  by  his  party,  is  not  necessarily  its  leader,  nor  even 
one  among  its  most  prominent  leaders.  Hence  he  does  not 
sway  the  councils  and  guide  the  policy  of  those  members  of 
Congress  who  belong  to  his  own  side.  No  duty  lies  on  Con- 
gress to  take  up  a  subject  to  which  he  has  called  attention  as 
needing  legislation ;  and  the  suggestions  which  he  makes,  year 
after  year,  are  in  fact  frequently  neglected,  even  when  his  party 
has  a  majority  in  both  Houses,  or  when  the  subject  lies  outside 
party  lines. 

The  President  and  his  cabinet  have  no  recognized  spokesman 
in  either  House.  A  particular  senator  or  representative  may 
be  in  confidential  communication  with  them,  and  be  the  instru- 
ment through  whom  they  seek  to  act ;  but  he  would  probably 
disavow  rather  than  claim  the  position  of  an  exponent  of  min- 
isterial wishes.  The  President  can  of  course  influence  mem- 
Constitution  of  tlie  Southern  Confederacy  (see  note  to  Chapter  XXVI.  at  the 
end  of  this  volume).  The  President  may  of  course  come  into  the  Senate, 
though  he  does  not  deliver  speeches  to  it.  He  does  not  go  into  the  House  of 
Representatives.  Nor  has  any  English  king  entered  the  House  of  Commons, 
except  Charles  I.  in  1&42,  on  the  occasion  of  his  attempt  to  seize  the  five  mem- 
bers, when,  says  the  Journal,  "His  Majesty  came  into  the  House  and  took 
Mr.  Speaker's  chair:  'Gentlemen,  I  am  sorry  to  have  this  occasion  to  come 
unto  you.'  "  The  results  did  not  encourage  his  successors  to  repeat  the  visit. 
But  Charles  H.  was  sometimes  present  during  debates  in  the  House  of  Lords, 
and  even  exhorted  the  Lords  to  be  more  orderly ;  Anne  sometimes  appeared ; 
and  there  would  not,  it  is  conceived,  be  anything  to  prevent  tlie  Sovereign 
from  being  present  now. 

1  The  House  some  years  ago  passed  a  bill  for  transferring  Indian  affairs 
from  the  Secretary  of  the  Interior  to  the  Secretary  of  War  without  consulting 
either  official. 

VOL.  T  P 


210  THE   NATIONAL   GOVERNMENT 


1)0 rs  of  Congress  through  patronage.  He  may  give  places  to 
them  or  their  friends  ;  he  may  approve  or  veto  bills  in  which 
they  are  interested ;  Ins  ministers  may  allot  lucrative  contracts 
to  their  nominees.  This  power  is  considerable,  but  covert,  for 
the  knowledge  that  it  was  being  used  might  damage  the  mem- 
ber in  public  estimation  and  expose  the  executive  to  imputa- 
tions. The  consequence  of  cutting  off  open  relations  has  been 
to  encourage  secret  influence,  which  may  no  doubt  be  used  for 
legitimate  purposes,  but  which,  being  exerted  in  darkness,  is 
seldom  above  suspicion.  AVhen  the  President  or  a  minister  is 
attacked  in  Congress,  it  is  not  the  duty  of  any  one  there  to 
justify  his  conduct.  The  accused  official  may  send  a  written 
defence  or  may  induce  a  member  to  state  his  case ;  but  this 
method  lacks  the  advantages  of  the  European  parliamentary 
system,  undin-  which  the  person  assailed  repels  in  debate  the 
various  charges,  showing  himself  not  afraid  to  answer  fresh 
questions  and  grapple  with  new  points.  Thus  by  its  exclusion 
from  Congress  the  executive  is  deprived  of  the  power  of  leading 
and  guiding  the  legislature  and  of  justifying  in  debate  its 
administrative  acts. 

Next  as  to  the  power  of  Congress  over  the  executive.  Either 
House  of  Congress,  or  both  Houses  jointly,  can  pass  resolu- 
tions calling  on  the  President  or  his  ministers  to  take  certain 
steps,  or  disapproving  steps  they  have  already  taken.  The 
President  need  not  obey  such  resolutions,  need  not  even  notice 
them.  They  do  not  shorten  his  term  or  limit  his  discretion.^ 
Moi'eover,  if  the  resolution  be  one  censuring  the  act  of  a  min- 
ister, the  President  does  not  escape  responsibility  by  throwing 
over  the  minister,  because  the  laAV  makes  him,  and  not  his  ser- 
vant or  adviser,  responsible. 

Either  House  of  Congress  can  direct  a  committee  to  summon 
and  examine  a  minister,  Avho,  though  he  might  legally  refuse 
to  attend,  never  does  refuse.  The  committee,  when  it  has  got 
him,  can  do  nothing  more  than  question  him.  He  may  evade 
their  questions,  may  put  them  off  the  scent  by  dexterous  con- 

1  In  Eufiland  a  resolution  of  the  House  of  Commons  alone  is  treated  as 
imperative  in  matters  lying  within  the  discretion  of  the  executive,  hut  then 
the  House  of  Commons  has  the  power  of  dismissing  the  (iovernment  if  its 
wislies  are  disregarded.  Tliere  liave  even  heen  instances  of  late  years  in  which 
the  executive  lias  ceased  to  put  in  force  the  provisions  of  an  unrepealed  statute, 
because  the  House  of  Commons  has  expressed  its  disapproval  of  that  statute. 


CHAP.  XX  CONGRESS   AND   THE   PRESIDENT  211 

cealments.  He  may  with  impunity  tell  them  that  he  means  to 
take  his  own  course.  To  his  own  master,  the  President,  he 
standeth  or  falleth. 

Congress  may  refuse  to  the  President  the  legislation  he 
requests,  and  thus,  by  mortifying  and  embarrassing  him,  may 
seek  to  compel  his  compliance  Avith  its  wishes.  It  is  only  a 
timid  President,  or  a  President  greatly  bent  on  accomplishing 
some  end  for  Avhich  legislation  is  needed,  who  will  be  moved 
by  such  tactics. 

Congress  can  pass  bills  requiring  the  President  or  any  min- 
ister to  do  or  abstain  from  doing  certain  acts  of  a  kind  hitherto 
left  to  his  free  will  and  judgment,  may,  in  fact,  endeavour  to 
tie  down  the  officials  by  prescribing  certain  conduct  for  them 
in  great  detail.  The  President  will  presumably  veto  such 
bills,  as  contrary  to  sound  administrative  policy.  If,  however, 
he  signs  them,  or  if  Congress  passes  them  over  his  veto,  the 
further  question  may  arise  whether  they  are  within  the  con- 
stitutional powers  of  Congress,  or  are  invalid  as  unduly  trench- 
ing on  the  discretion  which  the  Constitution  leaves  to  the 
executive  chief  magistrate.  If  he  (or  a  minister),  alleging 
them  to  be  unconstitutional,  disobeys  them,  the  only  means  of 
deciding  whether  he  is  right  is  by  getting  the  point  before  the 
Supreme  Court  as  an  issue  of  \a.^v  in  some  legal  proceeding. 
This  cannot  always  be  done.  If  it  is  done,  and  the  court 
decide  against  the  President,  then  if  he  still  refuses  to  obey, 
nothing  remains  but  to  impeach  him. 

Impeachment,  of  which  an  account  has  already  been  given, 
is  the  heaviest  piece  of  artillery  in  the  congressional  arsenal, 
but  because  it  is  so  heavy  it  is  unlit  for  ordinary  use.  It  is 
like  a  hundred-ton  gun  which  needs  complex  machinery  to 
bring  it  into  position,  an  enormous  charge  of  powder  to  fire  it, 
and  a  large  mark  to  aim  at.  Or  to  vary  the  simile,  impeachment 
is  what  physicians  call  a  heroic  medicine,  an  extreme  remedy, 
proper  to  be  applied  against  an  official  guilty  of  political  crimes, 
but  ill  adapted  for  the  punishment  of  small  transgressions. 
Although  the  one  President  (Andrew  Johnson)  against  whom 
it  has  been  used  had  for  two  years  constantly,  and  with  great 
intemperance  of  language,  so  defied  and  resisted  Congress  that 
the  whole  machinery  of  government  had  been  severely  strained, 
yet  the  Senate  did  not  convict  him,  because  no  single  offence 


212  THE   NATIONAL   GOVERNMENT 


liad  boon  clearly  made  out.  Thus  impeachment  does  not  tend 
to  secure,  and  indeed  was  never  meant  to  secure,  the  co-opera- 
tion of  the  executive  with  Congress. 

It  accordingly  appears  that  Congress  cannot  compel  the  dis- 
missal of  any  official.  It  may  investigate  his  conduct  by  a 
committee  and  so  try  to  drive  him  to  resign.  It  may  request 
the  President  to  dismiss  him,  but  if  his  master  stands  by  him 
and  he  sticks  to  his  ])lace,  nothing  more  can  be  done.  He  may 
of  course  be  impeached,  but  one  does  not  impeach  for  mere 
incompetence  or  laxity,  as  one  does  not  use  steam  hammers  to 
crack  nuts.  Thus  we  arrive  at  the  result  that  while  Congress 
may  examine  the  servants  of  tl.e  public  to  any  extent,  may 
censure  them,  may  lay  down  rules  for  their  guidance,  it  can- 
not get  rid  of  them.  It  is  as  if  the  directors  of  a  company 
were  forced  to  go  on  employing  a  manager  whom  they  had 
ceased  to  trust,  because  it  was  not  they  but  the  shareholders 
who  had  appointed  him. 

There  remains  the  power  which  in  free  countries  has  been 
long  regarded  as  the  citadel  of  parliamentary  supremacy,  the 
power  of  the  purse.  The  Constitution  keeps  the  President 
far  from  this  citadel,  granting  to  Congress  the  sole  right  of 
raising  money  and  appropriating  it  to  the  service  of  the  state. 
Its  management  of  national  finance  is  significantly  illustrative 
of  the  plan  Avhich  separates  the  legislative  from  the  executive. 
In  this  supremely  important  matter,  the  administration,  instead 
of  proposing  and  supervising,  instead  of  securing  that  each 
department  gets  the  money  that  it  needs,  that  no  money  goes 
where  it  is  not  needed,  that  revenue  is  procured  in  the  least 
troublesome  and  expensive  way,  that  an  exact  yearly  balance 
is  struck,  that  the  policy  of  expenditure  is  self-consistent  and 
reasonably  permanent  from  year  to  year,  is  by  its  exclusion 
from  Congress  deprived  of  influence  on  the  one  hand,  of 
responsibility  on  the  other.  The  office  of  Finance  Minister 
is  put  into  commission,  and  divided  between  the  chairmen 
of  several  unconnected  committees  of  both  Houses.  A  mass 
of  business  which  specially  needs  the  knowledge,  skill,  and 
economical  conscience  of  a  responsible  ministry,  is  left  to 
committees  which  are  poAverful  but  not  responsible,  and  to 
Houses  whose  nominal  responsibility  is  in  practice  sadly  weak- 
ened by  their  want  of  appropriate  methods  and  organization. 


CHAP.  XX  CONGRESS   AND  THE   PRESIDENT  213 

How  far,  then,  does  the  power  of  the  purse  enable  Congress 
to  control  the  President  ?  Much  less  than  in  European  coun- 
tries. Congress  may  check  any  particular  scheme  which  the 
President  favours  by  refusing  supplies  for  it.  If  he  were  to 
engage  in  military  operations  —  he  cannot  under  the  Constitu- 
tion "  declare  Avar  "  for  that  belongs  to  Congress  —  the  House 
might  paralyze  him  by  declining  to  vote  the  requisite  army 
appropriations.  If  he  were  to  repeat  the  splendid  audacity  of 
Jefferson  by  purchasing  a  new  territory,  they  could  withhold 
the  purchase  money.  But  if,  keeping  within  the  limits  of  his 
constitutional  functions,  he  takes  a  different  course  from  that 
they  recommend,  if  for  instance  he  should  refuse,  at  their 
repeated  requests,  to  demand  the  liberation  of  American  citi- 
zens pining  in  foreign  dungeons,  or  to  suppress  disorders  in  a 
State  whose  government  had  requested  Federal  intervention, 
they  would  have  to  look  on.  To  withhold  the  ordinary  sup- 
plies, and  thereby  stop  the  machine  of  government,  would 
injure  the  country  and  themselves  far  more  than  the  Presi- 
dent. They  would,  to  use  a  common  expression,  be  cutting 
off  their  nose  to  spite  their  face.  They  could  not  lawfully 
refuse  to  vote  his  salary,  for  that  is  guaranteed  to  him  by  the 
Constitution.  They  could  not,  except  by  a  successful  impeach- 
ment, turn  him  out  of  the  White  House  or  deprive  him  of  his 
title  to  the  obedience  of  all  Federal  officials. 

Accordingly,  when  Congress  has  endeavoured  to  coerce  the 
President  by  the  use  of  its  money  powers,  the  case  being  one 
in  which  it  could  not  attack  him  by  ordinary  legislation 
(either  because  such  legislation  would  be  unconstitutional,  or 
for  want  of  a  two-thirds  majority),  it  has  proceeded  not  by 
refusing  appropriations  altogether,  as  the  British  House  of 
Commons  Avould  do  in  like  circumstances,  but  by  attaching 
what  is  called  a  "rider"  to  an  appropriation  bill.  Many 
years  ago  the  House  formed,  and  soon  began  to  indulge  freely 
in,  the  habit  of  inserting  in  bills  appropriating  money  to 
the  purposes  of  the  public  service,  provisions  relating  to 
quite  different  matters,  which  there  was  not  time  to  push 
through  in  the  ordinary  way.  In  1867  Congress  used  this 
device  against  President  Johnson,  with  whom  it  was  then  at 
open  war,  by  attaching  to  an  army  appropriation  bill  a  clause 
which  virtually  deprived  the  President  of  the  command  of  the 


214  THE   NATIONAL   GOVERNMENT 


army,  entrusting  its  management  to  the  general  highest  iu 
command  (General  Grant).  The  President  yielded,  knowing 
that  if  he  refused  the  bill  would  be  carried  over  his  veto  by  a 
two-thirds  vote ;  and  a  usage  already  mischievous  was  con- 
tirmed.  In  1879,  the  majority  in  Congress  attempted  to  over- 
come, by  the  same  weapon,  the  resistance  of  President  Hayes 
to  certain  measures  affecting  the  South  which  they  desired  to 
pass.  They  tacked  these  measures  to  three  appropriation  bills, 
army,  legislative,  and  judiciary.  The  minority  in  both  houses 
fought  hard  against  the  riders,  but  were  beaten.  The  Presi- 
dent vetoed  all  three  bills,  and  Congress  was  obliged  to  pass 
them  without  the  riders.  Next  session  the  struggle  recom- 
menced in  the  same  form,  and  the  President,  by  rejecting  the 
money  bills,  again  compelled  Congress  to  drop  the  tacked  pro- 
visions. This  victory,  which  was  of  course  due  to  the  fact 
that  the  dominant  party  in  Congress  could  not  command  a  two- 
thirds  majority,  was  deemed  to  have  settled  the  question  as 
between  the  executive  and  the  legislature,  and  may  have  perma- 
nently discouraged  the  latter  from  recurring  to  the  same  tactics. 
President  Hayes  in  his  veto  messages  argued  strongly 
against  the  whole  practice  of  tacking  other  matters  to  money 
liills  ;  and  a  rule  of  the  House  now  declares  that  an  appropria- 
tion bill  shall  not  carry  any  new  legislation.  It  has  certainly 
caused  great  abuses,  and  is  forbidden  by  the  constitutions  of 
many  States.  Eecently  the  President  has  urged  upon  Congress 
the  desirability  of  so  amending  the  Federal  Constitution  as  to 
enable  him,  as  a  State  governor  is  by  some  recent  State  consti- 
tutions allowed  to  do,  to  veto  single  items  in  an  appropriation 
bill  without  rejecting  the  whole  bill.  Such  an  amendment 
is  desired  by  enlightened  men,  because  it  would  enable  the 
executive  to  do  its  duty  by  the  country  in  defeating  the  petty 
jobs  now  smuggled  into  these  bills,  without  losing  the  sup- 
plies necessary  for  the  public  service  which  the  bills  provide. 
Small  as  the  change  seems,  its  adoption  would  cure  one  of 
the  defects  due  to  the  absence  of  ministers  from  Congress, 
and  save  the  nation  millions  of  dollars  a  year,  by  diminish- 
ing wasteful  expenditure  on  local  purposes.  But  the  process 
of  amending  the  Constitution  is  so  troublesome  that  even  a 
change  which  involves  no  party  issues  may  remain  unadopted 
long  after  the  best  opinion  has  become  unanimous  in  its  favour. 


CHAPTER  XXI 

THE    LEGISLATURE    AND    THE    EXECUTIVE 

The  fundamental  characteristic  of  the  American  National 
Government  is  its  separation  of  the  legislative,  executive,  and 
judicial  departments.  This  separation  is  the  merit  which  the 
Philadelphia  Convention  chiefly  sought  to  attain,  and  which 
the  Americans  have  been  wont  to  regard  as  most  completely 
secured  by  their  Constitution.  In  Europe,  as  well  as  in 
America,  men  are  accustomed  to  talk  of  legislation  and  admin- 
istration as  distinct.  But  a  consideration  of  their  nature  will 
show  that  it  is  not  easy  to  separate  these  two  departments  in 
theory  by  analysis,  and  still  less  easy  to  keep  them  apart  in 
practice.  We.  may  begin  by  examining  their  relations  in  the 
internal  affairs  of  a  nation,  reserving  foreign  policy  for  a  later 
part  of  the  discussion. 

People  commonly  think  of  the  Legislature  as  the  body  which 
lays  down  general  rules  of  law,  which  prescribes,  for  instance, 
that  at  a  man's  death  his  children  shall  succeed  equally  to  his 
property,  or  that  a  convicted  thief  shall  be  punished  with  im- 
prisonment, or  that  a  manufacturer  may  register  his  trade 
mark.  They  think  of  the  Executive  as  consisting  of  the  per- 
sons who  do  certain  acts  under  those  rules,  who  lock  up  con- 
victs, register  trade  marks,  carry  letters,  raise  and  pay  a  police 
and  an  army.  In  finance  the  Legislature  imposes  a  tax,  the 
Executive  gathers  it,  and  places  it  in  the  treasury  or  in  a  bank, 
subject  to  legislative  orders ;  the  Legislature  votes  money  by 
a  statute,  appropriating  it  to  a  specific  purpose  ;  the  Execu- 
tive draws  it  from  the  treasury  or  bank,  and  applies  it  to  that 
purpose,  perhaps  in  paymg  the  army,  perhaps  in  building  a 
bridge. 

The  executive  is,  in  civilized  countries,  itself  the  creature  of 
the  law,  deriving  therefrom  its  existence  as  well  as  its  author- 


210  THE  NATIONAL  GOVERNMENT 


ity.  Sometimes,  as  in  France,  it  is  so  palpably  and  formally. 
The  President  of  the  Eepublic  has  been  called  into  existence 
by  the  Constitution.  Sometimes,  as  in  England,  it  is  so  sub- 
stantially, though  not  formally.  The  English  Crown  dates 
from  a  remote  antiquity,  when  custom  and  belief  had  scarcely 
crystallized  into  law  ;  and  though  Parliament  has  repeatedly 
determined  its  devolution  upon  particular  persons  or  families 

it  is  now  held  under  the  Act  of  Settlement  —  no  statute  has 

ever  affected  to  confer  upon  it  its  rights  to  the  obedience  of 
the  people.  But  practically  it  holds  its  powers  at  the  pleas- 
ure of  Parliament,  which  has  in  some  cases  expressly  limited 
them,  and  in  others  given  them  a  tacit  recognition.  We 
may  accordingly  say  of  England  and  of  all  constitutional 
monarchies  as  well  as  of  republics  that  the  executive  in  all  its 
acts  must  obey  the  law,  that  is  to  say,  if  the  law  prescribes  a 
particular  course  of  action,  the  executive  must  take  that 
course  ;  if  the  law  forbids  a  particular  course,  the  executive 
must  avoid  it. 

It  is  therefore  clear  that  the  extent  of  the  power  of  the 
executive  magistrate  depends  upon  the  particularity  with 
which  the  law  is  drawn,  that  is,  upon  the  amount  of  discretion 
which  the  law  leaves  to  him.  If  the  law  is  general  in  its 
terms,  the  executive  has  a  wide  discretion.  If,  for  instance, 
the  law  prescribes  simply  that  a  duty  of  ten  per  cent  ad  valorem 
be  levied  on  all  manufactured  goods  imported,  it  rests  with 
the  executive  to  determine  by  whom  and  where  that  duty 
shall  be  collected,  and  on  what  principles  it  shall  be  calcu- 
lated. If  the  law  merely  creates  a  post-office,  the  executive 
may  fix  the  rate  of  payment  for  letters  and  parcels,  and  the 
conditions  on  which  they  will  be  received  and  delivered.  In 
these  cases  the  executive  has  a  large  field  within  which  to 
exert  its  free  will  and  choice  of  means.  Power  means  nothing 
more  than  the  extent  to  which  a  man  can  make  his  individual 
will  prevail  against  the  wills  of  other  men,  so  as  to  control 
them.  Hence,  when  the  law  gives  to  a  magistrate  a  wide  dis- 
cretion, he  is  powerful,  because  the  law  clothes  his  will  with 
all  the  power  of  the  state.  On  the  other  hand,  if  the  law  goes 
into  minute  details,  directing  this  to  be  done  and  that  not  to 
be  done,  it  narrows  the  discretion  of  the  executive  magistrate. 
His  personal  will  and  choice  are  gone.     He  can  no  longer  be 


CHAP.  XXI  LEGISLATURE   AXD   EXECUTIVE  217 


thought  of  as  a  co-ordinate  power  in  the  state.  He  becomes 
a  mere  servant,  a  hand  to  carry  out  the  bidding  of  the  legis- 
lative brain,  or,  we  may  even  say,  a  tool  in  the  legislative 
hand. 

As  the  legislature  has  been  the  body  through  which  the  peo- 
ple have  chiefly  asserted  their  authority,  we  find  that  law- 
making assemblies,  whether  primary  or  representative,  have 
always  sought  to  extend  their  province  and  to  subject  the 
executive  to  themselves.  They  have  done  this  in  several 
ways.  In  the  democracies  of  ancient  Greece  the  assembly  of 
citizens  not  only  passed  statutes  of  general  application,  but 
made  peace  or  declared  war;  ordered  an  expedition  to  start 
for  Sphacteria,  and  put  Cleon  at  the  head  of  it ;  commanded 
the  execution  of  prisoners  or  reprieved  them ;  conducted,  in 
fact,  most  of  the  pviblic  business  of  the  city  by  a  series  of 
direct  decrees,  all  of  which  were  laws,  i.e.  declarations  of  its 
sovereign  will.  It  was  virtually  the  government.  The  chief 
executive  officers  of  Athens,  called  the  generals,  had  little 
authority  except  over  the  military  operations  in  the  field. 
Even  the  Eoman  Constitution,  a  far  more  highly  developed 
and  scientific,  though  also  a  complicated  and  cumbrous  system, 
while  it  wisely  left  great  discretion  to  the  chief  magistrates 
(requiring  them,  hoAvever,  to  consult  the  Senate),  yet  per- 
mitted the  passing  j^ro  re  nata  of  important  laws,  which  were 
really  executive  acts,  such  as  the  law  by  which  Pompey 
received  an  extraordinary  command  against  Mithradates.  The 
Eomans  did  not  draw,  any  more  than  the  Greek  republics,  a 
distinction  between  general  and  special  legislation.^ 

This  method,  in  which  the  people  directly  govern  as  a  legis- 
lature, reducing  the  executive  magistrates  to  passive  instru- 
ments, is  inapplicable  where  the  country  is  large,  because  the 
mass  of  citizens  cannot  come  together  as  an  assembly.  It  is 
highly  inconvenient  where  the  legislature,  though  a  represen- 
tative body,  is  very  numerous.     England,  accordingly,  and  the 

1  Cf.  Chapter  XXXI.  and  notes  thereto.  The  distinction  is  apt  to  be  for- 
gotten under  a  despotic  monarch,  who  is  at  once  the  executive  and  the  legisla- 
tive authority.  Nevertheless,  even  under  an  autocrat  there  are  some  general 
rules  which  his  individual  volition  dares  not  change,  because  the  universal 
opinion  of  the  people  approves  them.  The  book  of  Daniel  even  represents 
Darius  as  unable  to  revoke  a  general  law  he  has  once  sanctioned,  or  to  except 
a  particular  person  from  its  operation. 


218  THE   NATIONAL   GOVERNMENT 


nations  which  have  imitated  England/  have  taken  a  different 
method.  The  people  (that  is,  the  qualified  voters)  have  allowed 
an  executive  to  subsist  with  apparently  wide  powers,  but  they 
virtually  choose  this  executive,  and  keep  it  in  so  close  and  con- 
stant a  dependence  upon  their  pleasure,  that  it  dare  not  act 
against  what  it  believes  their  will  to  be.  The  struggle  for 
l)opular  liberties  in  England  took  at  first  the  form  of  a  struggle 
for  the  supremacy  of  law ;  that  is  to  say,  it  was  a  struggle  to 
restrain  the  prerogative  of  the  king  by  compelling  his  ministers 
to  respect  the  ancient  customs  of  the  land  and  the  statutes 
passed  in  Parliament.  As  the  customs  were  always  maintained, 
and  the  range  of  the  statutes  constantly  widened,  the  executive 
was  by  degrees  hemmed  in  within  narrow  limits,  its  discretion- 
ary power  restricted,  and  that  characteristic  principle  of  the 
Constitution,  which  has  been  well  called  "  The  Eeign  of  Law," 
was  established.  It  was  settled  that  the  law,  i.e.  the  ancient 
customs  and  the  statutes,  should  always  prevail  against  the 
discretion  of  the  Crown  and  its  ministers,  aiid  that  acts  done 
by  the  servants  of  the  Crown  should  be  justiciable,  exactly  like 
the  acts  of  private  persons.  This  once  achieved,  the  executive 
fairly  bitted  anol  bridled,  and  the  ministry  made  to  hold  office 
at  the  pleasure  of  the  House  of  Commons,  Parliament  had  no 
longer  its  former  motive  for  seeking  to  restrict  the  discretion 
of  the  ministers  of  the  Crown  by  minutely  particular  legisla- 
tion, for  ministers  had  become  so  accustomed  to  subjection  that 
their  discretion  might  be  trusted.  Parliament  has,  in  fact,  of 
late  years  begun  to  sail  on  the  other  tack,  and  allows  ministers 
to  do  many  things  by  regulations,  schemes,  orders  in  council, 
and  so  forth,  which  would  previously  have  been  done  by 
statute,  generally,  however,  reserving  to  itself  a  right  of  dis- 
approval. 

It  may  be  asked  how  it  comes,  if  this  be  so,  that  people 
nevertheless  talk  of  the  executive  in  England  as  being  a  sepa- 
rate and  considerable  authority.  The  answer  is  twofold.  The 
English  Crown  has  never  been,  so  to  speak,  thrown  into  the 

1  But  during  and  immediately  after  the  great  Civil  War  the  Long  Parlia- 
ment acted  as  both  a  legislative  and  an  executive  authority,  as  did  the  Con- 
vention through  part  of  the  French  Revolution.  And  Parliament  of  course 
still  retains  its  power  of  giving  what  are  practically  executive  orders,  e.g.  it 
can  pass  a  statute  directing  a  particular  island  to  be  seized  or  another  to  be 
evacuated,  as  Heligoland  lately  was. 


CHAP.  XXI  LEGISLATURE   AND   EXECUTIVE  219 

melting-pot  and  recast,  but  has  continued,  in  external  form  and 
seeming,  an  independent  and  highly  dignified  part  of  the  con- 
stitutional system.^  Parliament  has  never  asserted  a  direct 
control  over  certain  parts  of  the  royal  prerogative,  such  as  the 
bestowal  of  honours,  the  creation  of  peerages,  the  making  of 
appointments  to  office.  No  one  at  this  moment  can  say  exactly 
what  the  royal  prerogative  does  or  does  not  include.  And 
secondly,  the  actual  executive,  i.e.  the  ministry  of  the  day, 
retains  some  advantages  which  are  practically,  though  not 
legally,  immense.  It  has  an  initiative  in  all  legislation,  a  sole 
initiative  in  financial  legislation.  It  is  a  small  and  well  organ- 
ized body  placed  in  the  midst  of  a  much  larger  and  less  or- 
ganized body  {i.e.  the  two  Houses),  on  which  therefore  it  can 
powerfully  act.  All  patronage,  ecclesiastical  as  well  as  civil, 
lies  in  its  gift,  and  though  it  must  not  use  this  function  so  as 
to  disgust  the  Commons,  it  has  great  latitude  in  the  disposal 
of  favours.  While  Parliament  is  sitting  it  disposes  of  a  large 
part,  sometimes  of  the  whole,  of  the  time  of  the  House  of  Com- 
mons, and  can  therefore  advance  the  measures  it  prefers,  while 
retarding  or  evading  motions  it  dislikes.  During  nearly  half 
the  year  Parliament  is  not  sitting,  and  the  necessities  of  a  great 
State  placed  in  a  restless  world  oblige  a  ministry  to  take  mo- 
mentous resolutions  upon  its  own  responsibility.  Finally, 
it  includes  a  few  men  who  have  obtained  a  hold  on  the  imagi- 
nation and  confidence  of  the  people,  which  emboldens  them  to 

1  An  interesting  illustration  of  the  relations  of  the  English  executive  to  the 
legislature  in  the  fourteenth  and  fifteenth  centuries,  when  Parliament  was 
little  more  than  a  pure  legislature,  is  afTorded  by  the  present  constitution  of 
the  tiny  kingdom  of  the  Isle  of  Man,  the  last  survivor  of  those  numerous  king- 
doms among  which  the  British  Isles  were  once  divided.  Its  government  is 
carried  on  by  a  Governor  (appointed  by  the  English  Crown),  a  council  of  eight 
(composed  partly  of  persons  nominated  by  the  Crown  and  partly  of  ex-officio 
members  holding  posts  to  which  they  have  been  appointed  by  the  Crown) ,  and 
an  elected  representative  assembly  of  twenty-four.  The  assembly  is  purely 
legislative,  and  cannot  check  the  Governor  otherwise  than  by  withholding  the 
legislation  he  wishes  for  and  such  taxes  as  are  annually  voted.  For  the  pur- 
poses of  finance  bills  the  assembly  (House  of  Keys)  and  the  council  sit  together 
but  vote  separately.  The  Governor  presides,  as  the  English  king  did  in  his 
Great  Council.  The  Governor  can  stop  any  legislation  he  disapproves,  and 
can  retain  his  ministers  against  the  will  of  the  assembly.  He  is  a  true  execu- 
tive magistrate,  commanding,  moreover,  like  the  earlier  English  kings,  a 
considerable  revenue  which  does  not  depend  on  the  annual  votes  of  the  legis- 
lature. Here  therefore  is  an  Old-World  instance  of  the  American  system  as 
contradistinguished  from  the  cabinet  system  of  England  and  her  colonies. 


220  THE   NATIONAL   GOVERNMENT 


resist  or  even  to  lecture  Parliament,  and  often  to  prevail,  not 
only  against  its  first  impulses,  but  possibly  against  its  deliber- 
ate wishes.  And  an  English  ministry  is  strong  not  only  because 
it  so  frankly  acknowledges  its  dependence  on  the  Commons  as 
not  to  rouse  the  antagonism  of  that  body,  to  which,  be  it  remem- 
bered, most  ministers  belong,  but  also  because  it  has  another 
l)ower  outside  to  which  it  can,  in  extreme  cases,  appeal.  It 
may  dissolve  Parliament,  and  ask  the  people  to  judge  between 
its  views  and  those  of  the  majority  of  the  House  of  Commons. 
Sometimes  such  an  appeal  succeeds.  The  power  of  making  it 
is  at  all  times  a  resource. 

This  delicate  equipoise  of  tht  ministry,  the  House  of  Com- 
mons, and  the  nation  acting  at  a  general  election,  is  the  secret 
of  the  smooth  working  of  the  British  Constitution.  It  reap- 
pears in  two  remarkable  Constitutions,  which  deserve  fuller 
study  than  they  have  yet  received  from  American  or  English 
publicists,  those  of  Prussia  and  the  new  German  Empire. 
There,  however,  the  ministry  is  relatively  stronger  than  in 
England,  because  the  Crown  retains  not  only  a  wider  range  of 
legal  authority,  but  a  greater  moral  influence  over  the  people, 
Avho  have  had  less  practice  than  the  English  in  working  free 
institutions,  and  who  never  forget  that  they  are  soldiers,  and 
the  King-Emperor  head  of  the  army.  A  Prussian  minister  is 
so  likely  to  have  the  nation  on  his  side  when  he  makes  an 
appeal  to  it  in  the  name  of  the  King,  and  feels  so  confident 
that  even  if  he  defies  the  Chambers  without  dissolving,  the 
nation  will  not  be  greatly  stirred,  that  he  sometimes  refuses  to 
obey  the  legislature.  This  is  one  of  those  exceptions  which 
illustrate  the  rule.  The  legislature  is  prevented  from  gaining 
ground  on  the  executive,  not  so  much  by  the  Constitution  as 
]jy  the  occasional  refusal  of  the  executive  to  obey  the  Consti- 
tution, a  refusal  made  in  reliance  on  the  ascendency  of  the 
Crown. 

So  far  we  have  been  considering  domestic  policy.  The  case 
of  foreign  affairs  differs  chiefly  in  this,  that  they  cannot  be 
provided  for  beforehand  by  laws  general  in  application,  but 
minutely  particular  in  wording.  A  governing  assembly  may 
take  foreign  affairs  into  its  OAvn  hand.  In  the  republics  of 
antiquity  the  Assembly  did  so,  and  was  its  own  foreign  office. 
The  Athenian  Asseinbly  received  ambassadors,  declared  war, 


CHAP.  XXI  LJ:GISLATURE   and   executive  221 


concluded  treaties.  It  got  on  well  enough  while  it  had  to  deal 
with  other  republics  like  itself,  but  suffered  when  the  contest 
came  to  be  Avith  an  astute  diplomatist  like  Philip  of  Macedon. 
The  Eoman  Senate  conducted  the  foreign  policy  of  Eome, 
often  with  the  skill  to  be  expected  from  men  of  immense 
experience  and  ability,  yet  sometimes  with  a  vacillation  which 
a  monarch  would  have  been  less  likely  to  show.  But  the 
foreign  relations  of  modern  states  are  so  numerous  and  com- 
plex, and  so  much  entangled  with  commercial  questions,  that 
it  has  become  necessary  to  create  a  staff  of  trained  officials  to 
deal  with  them.  No  large  popular  assembly  could  have  either 
the  time  or  the  knowledge  requisite  for  managing  the  ordinary 
business,  much  less  could  it  conduct  a  delicate  negotiation 
whose  success  would  depend  on  promptitude  and  secrecy. 
Hence  even  democratic  countries  like  France  and  England  are 
forced  to  leave  foreign  affairs  to  a  far  greater  degree  than 
home  affairs  to  the  discretion  of  the  ministry  of  the  day. 
France  reserves  to  the  Chambers  the  poAver  of  declaring  war 
or  concluding  a  treaty.  England  has  so  far  adhered  to  the  old 
traditions  as  to  leave  both  to  the  Crown,  though  the  first,  and 
in  most  cases  the  second,  must  be  exerted  Avith  the  virtual 
approval  of  Parliament.  The  executive  is  as  distinctly  respon- 
sible to  the  legislature,  as  clearly  bound  to  obey  the  directions 
of  the  legislature,  as  in  matters  of  domestic  concern.  But  the 
impossibility  Avhich  the  legislature  in  countries  like  France 
and  England  finds  in  either  assuming  executi\'e  functions  in 
international  intercourse,  or  laying  down  any  rules  by  law  for 
the  guidance  of  the  executive,  necessarily  gives  the  executive 
a  Avide  discretion  and  a  correspondingly  large  measure  of  in- 
fluence and  authority.  The  only  Avay  of  restricting  this  au- 
thority Avould  be  to  create  a  small  foreign  affairs  committee  of 
the  legislature  and  to  empower  it  to  sit  when  the  latter  was 
not  sitting.  And  this  extreme  course  neither  France  nor  Eng- 
land has  3^et  taken,  because  the  dependence  of  the  ministry  on 
the  majority  of  the  legislature  has  hitherto  seemed  to  secure 
the  conformity  of  the  Foreign  Office  to  the  ideas  and  senti- 
ments of  that  majority. 

Before  applying  these  observations  to  the  United  States,  let 
us  summarize  the  conclusions  we  haA^e  reached. 

We  have  found  that  Avherever  the  aa^II  of  the  people  prevails. 


222  THE   NATIONAL   GOVEKNMENT 


the  legislature,  since  it  either  is  or  represents  the  people,  can 
make  Itself  omnipotent,  unless  checked  by  the  action  of  the 
people  themselves.  It  can  do  this  in  tAvo  Avays.  It  may,  like 
the  republics  of  antiquity,  issue  decrees  for  particular  cases  as 
they  arise,  giving  constant  commands  to  all  its  agents,  who 
thus  become  mere  servants  with  no  discretion  left  them.  Or 
it  may  frame  its  laAvs  with  such  particularity  as  to  provide 
by  anticipation  for  the  greatest  possible  number  of  imaginable 
cases,  in  this  way  also  so  binding  down  its  officials  as  to  leave 
them  no  volition,  no  real  authority. 

"We  have  also  observed  that  every  legislature  tends  so  to 
enlarge  its  powers  as  to  encroack  on  the  executive ;  and  that 
it  has  great  advantages  for  so  doing,  because  a  succeeding  leg- 
islature rarely  consents  to  strike  off  any  fetter  its  predecessor 
has  imposed. 

Thus  the  legitimate  issue  of  the  process  would  be  the  extinc- 
tion or  absorption  of  the  executive  as  a  power  in  the  state. 
It  would  become  a  mere  set  of  employes,  obeying  the  legislat- 
ure as  the  clerks  in  a  bank  obey  the  directors.  If  this  does 
not  happen,  the  cause  is  generally  to  be  sought  in  some  one  or 
more  of  the  following  circumstances  :  — 

The  legislature  may  allow  the  executive  the  power  of  appeal- 
ing to  the  nation  against  itself  (England) } 

The  people  may  from  ancient  reverence  or  the  habit  of  mili- 
tary submission  be  so  much  disposed  to  support  the  executive 
as  to  embolden  the  latter  to  defy  the  legislature  (Prussia). 

The  importance  of  foreign  policy  and  the  difficulty  of  taking 
it  out  of  the  hands  of  the  executive  may  be  so  great  that  the 
executive  will  draw  therefrom  an  influence  re-acting  in  favour 
of  its  general  weight  and  dignity  (Prussia,  England,  and,  to 
some  extent,  France). 

Let  us  now  see  Iioav  the  founders  of  the  American  Constitu- 
tion settled  the  relations  of  the  departments.  They  were 
terribly  afraid  of  a  strong  executive,  and  desired  to  reserve 
the  final  and  decisive  voice  to  the  legislature,  as  representing 
the  people.  They  could  not  adopt  the  Greek  method  of  an 
assembly  both  executive  and  legislative,  for  Congress  Avas  to 
be  a  body  Avith  limited  poAvers ;  continuous  sittings  would  be 

1  In  France  the  President  can  dissoh'e  the  Chambers,  but  only  with  the 
consent  of  the  Senate. 


CHAP.  XXI  LEGISLATURE   AND   EXECUTIVE  223 

inconvenient,  and  the  division  into  two  equally  powerful  houses 
would  evidently  unlit  it  to  govern  with  vigour  and  promptitude. 
Neither  did  they  adopt  the  English  method  of  a  legislature 
governing  through  an  executive  dependent  upon  it.  It  was 
urged  in  the  Philadelphia  Convention  of  1787  that  the  execu- 
tive ought  to  be  appointed  by  and  made  accountable  to  the 
legislature,  as  being  the  supreme  power  in  the  national  gov- 
ernment. This  Avas  over-ruled,  because  the  majority  of  the 
Convention  were  fearful  of  "  democratic  haste  and  instability," 
fearful  that  the  legislature  would,  in  any  event,  become  too 
powerful,  and  therefore  anxious  to  build  up  some  counter 
authority  to  check  and  balance  it.  By  making  the  President 
independent,  and  keeping  him  and  his  ministers  apart  from  the 
legislature,  the  Convention  thought  they  were  strengthening 
him,  as  well  as  protecting  it  from  attempts  on  his  part  to 
corrupt  it.^  They  were  also  weakening  him.  He  lost  the 
initiative  in  legislation  which  the  English  executive  enjoys. 
He  had  not  the  English  King's  power  of  dissolving  the  legis- 
lature and  throwing  himself  upon  the  country.  Thus  the 
executive  magistrate  seemed  left  at  the  mercy  of  the  legisla- 
ture. It  could  weave  so  close  a  network  of  statutes  round  him, 
like  the  net  of  iron  links  which  Hephaestus  throws  over  the 
lovers  in  the  Odyssey,  that  his  discretion,  his  individual  voli- 
tion, seemed  to  disappear,  and  he  ceased  to  be  a  branch  of  the 
government,  being  nothing  more  than  a  servant  Avorking  tinder 
the  eye  and  at  the  nod  of  his  master.  This  would  have  been 
an  absorption  of  the  executive  into  the  legislature  more  com- 
plete than  that  which  England  now  presents,  for  the  English 
prime  minister  is  at  any  rate  a  leader,  perhaps  as  necessary  to 
his  parliamentary  majority  as  it  is  to  him,  whereas  the  Presi- 
dent would  have  become  a  sort  of  superior  police  commissioner, 
irremovable  during  four  years,  but  debarred  from  acting  either 
on  Congress  or  on  the  people. 

Although  the  Convention  may  not  have  realized  how  helpless 
such  a  so-called  Executive  must  be,  they  felt  the  danger  of 
encroachments  by  an  ambitious  legislature,  and  resolved  to 

1  Their  sense  of  the  danger  to  a  legislature  from  corruption  by  the  execu- 
tive was  probably  quickened  by  what  they  knew  of  the  condition  of  the  Irish 
Parliament,  full,  even  after  17S2,  of  placemen  and  pensioners.  Much  of  the 
best  ])lood  of  Ulster  had  emigrated  to  America  in  the  preceding  half  century, 
and  Irish  politics  must  have  excited  a  good  deal  of  interest  there. 


224  THE   NATIONAL   GOVERNMENT 


strengthen  him  against  it.  This  was  done  by  giving  the  Presi- 
dent a  veto  which  it  requires  a  two-thirds  vote  of  Congress  to 
over-ride.  In  doing  this  they  partly  reversed  their  previous 
action.  They  had  separated  the  President  and  his  ministers 
from  Congress.  They  now  bestowed  on  him  legislative  func- 
tions, though  in  a  different  form.  He  became  a  distinct  branch 
of  the  legislature,  but  for  negative  purposes  only.  He  could 
not  propose,  but  he  could  refuse.  Thus  the  executive  was 
strengthened,  not  as  an  executive,  but  by  being  connected  with 
tlie  legislature ;  and  the  legislature,  already  weakened  by  its 
division  into  two  co-equal  houses,  was  further  weakened  by 
finding  itself  liable  to  be  arretted  in  any  new  departure  on 
which  two-thirds  of  both  houses  were  not  agreed. 

When  the  two  houses  are  of  one  mind,  and  the  party  hostile 
to  the  President  has  a  two-thirds  majority  in  both,  the  Execu- 
tive is  almost  powerless.  It  may  be  right  that  he  should  be 
powerless,  because  such  majorities  in  both  houses  presumably 
indicate  a  vast  preponderance  of  popular  opinion  against  him. 
The  fact  to  be  emphasized  is,  that  in  this  case  all  "  balance  of 
poAvers  "  is  gone.  The  legislature  has  swallowed  up  the  execu- 
tive, in  virtue  of  the  principle  from  which  this  discussion 
started,  viz.  that  the  executive  is  in  free  States  only  an  agent 
who  may  be  so  limited  by  express  and  minute  commands  as 
to  have  no  volition  left  him. 

The  strength  of  Congress  consists  in  the  right  to  pass  stat- 
utes ;  the  strength  of  the  President  in  his  right  to  veto  them. 
But  foreign  affairs,  as  we  have  seen,  cannot  be  brought  within 
the  scope  of  statutes.  How  then  was  the  American  legislature 
to  deal  with  them  ?  There  were  two  courses  open.  One  was 
to  leave  foreign  affairs  to  the  executive,  as  in  England,  giving 
Congress  the  same  indirect  control  as  the  English  Parliament 
enjoys  over  the  Crown  and  ministry.  This  course  could  not 
be  taken,  because  the  President  is  independent  of  Congress 
and  irremovable  during  his  term.  The  other  course  would 
have  been  for  Congress,  like  a  Greek  assembly,  to  be  its  own 
foreign  office,  or  to  create  a  foreign  affairs  committee  of  its 
members  to  handle  these  matters.  As  the  objections  to  this 
course,  which  would  have  excluded  the  chief  magistrate  from 
functions  naturally  incidental  to  his  position  as  official  repre- 
sentative of  the  nation,  were  overwhelmingly  strong,  a  com- 


CHAP.  XXI  LEGISLATUKE   AND   EXECUTIVE  225 

promise  was  made.  The  initiative  in  foreign  policy  and  the 
conduct  of  negotiations  were  left  to  him,  but  the  right  of 
declaring  war  was  reserved  to  Congress,  and  that  of  making 
treaties  to  one,  the  smaller  and  more  experienced,  branch  of 
the  legislature.  A  measure  of  authority  was  thus  suffered  to 
fall  back  to  the  Executive  which  Avould  have  served  to  raise 
materially  his  position  had  foreign  questions  played  as  large  a 
part  in  American  politics  as  they  have  in  French  or  English. 
They  have,  however,  been  comparatively  unimportant,  espe- 
cially since  1815. 

It  may  be  said  that  there  was  yet  another  source  whence 
the  executive  might  draw  strength  to  support  itself  against  the 
legislature,  viz.  those  functions  which  the  Constitution,  deem- 
ing them  necessarily  incident  to  an  executive,  has  reserved  to 
the  President  and  excluded  from  the  competence  of  Congress. 
But  examination  shows  that  there  is  scarcely  one  of  these  which 
the  long  arm  of  legislation  cannot  reach.  The  President  is  com- 
mander-in-chief of  the  army,  but  the  numbers  and  organization 
of  the  army  are  fixed  by  statute.  The  President  makes 
appointments,  but  the  Senate  has  the  right  of  rejecting  them, 
and  Congress  may  pass  Acts  specifying  the  qualifications  of 
appointees,  and  reducing  the  salary  of  any  official  except  the 
President  himself  and  the  judges.  The  real  strength  of  the 
executive  therefore,  the  rampart  from  behind  which  it  can 
resist  the  aggressions  of  the  legislature,  is  in  ordinary  times 
the  veto  power.^  In  other  words,  it  survives  as  an  executive 
in  virtue  not  of  any  properly  executive  function,  but  of  the 
share  in  legislative  functions  which  it  has  received ;  it  holds 
its  ground  by  force,  not  of  its  separation  from  the  legislature, 
but  of  its  participation  in  a  right  properly  belonging  to  the 
legislature.^ 

1  In  moments  of  public  danger,  as  during  the  War  of  Secession,  the  execu- 
tive of  course  springs  up  into  immense  power,  partly  because  the  command  of 
the  army  is  then  of  the  first  importance ;  partly  because  the  legislature,  feel- 
ing its  unfitness  for  swift  and  secret  decisions,  gives  free  rein  to  the  Executive, 
and  practically  puts  its  law-making  powers  at  his  disposal. 

2  What  is  said  here  of  the  national  executive  and  national  legislature  is  a 
fortiori  true  of  the  State  executives  and  State  legislatures.  The  State  gov- 
ernor has  no  power  of  independent  action  whatever,  being  checked  at  every 
step  by  State  statutes,  and  his  discretion  superseded  by  the  minute  directions 
which  those  statutes  contain.  He  has  not  even  ministers,  because  the  other 
chief  officials  of  the  State  are  chosen,  not  by  himself,  but  by  popular  vote. 

VOL.  I  Q 


22(3  THE   NATIONAL   GOVERNMENT  pakt  i 


An  authority  which  depends  on  a  veto  capable  of  being  over- 
ruU'd  by  a  two-thirds  majority  may  seem  frail.  But  the  expe- 
rience of  a  century  has  shown  that,  owing  to  the  almost  equal 
strength  of  the  two  great  parties,  the  Houses  often  differ,  and 
there  is  rarely  a  two-thirds  majority  of  the  same  colour  in  both. 
Hence  the  Executive  has  enjoyed  some  independence.  He  is 
strong  for'  defence,  if  not  for  attack.  Congress  can,  except 
within  that  narrow  sphere  which  the  Constitution  has  abso- 
lutely reserved  to  him,  baffle  the  President,  can  interrogate, 
check,  and  worry  his  ministers.  But  it  can  neither  drive  him 
the  way  it  wishes  him  to  go,  nor  dismiss  them  for  disobedience 
or  incomiietence. 

An  individual  man  has  some  great  advantages  in  combating 
an  assendjly.  His  counsels  are  less  distracted.  His  secrets 
arc  better  ke^tt.  He  may  sow  discord  among  his  antagonists. 
He  can  strike  a  more  sudden  blow.  Julius  Caesar  was  more 
than  a  match  for  the  Senate,  Cromwell  for  the  Long  Parlia- 
ment, even  Louis  Napoleon  for  the  French  Assembly  of  1851. 
Hence,  when  the  President  happens  to  be  a  strong  man,  reso- 
lute, prudent,  and  popular,  he  may  well  hope  to  prevail  against 
a  body  whom  he  may  divide  by  the  dexterous  use  of  patronage, 
may  weary  out  by  inflexible  patience,  may  overawe  by  winning 
the  admiration  of  the  masses,  always  disposed  to  rally  round 
a  striking  personality.  But  in  a  struggle  extending  over  a 
long  course  of  years  an  assembly  has  advantages  over  a  suc- 
cession of  oflicers,  especially  of  elected  officers.  The  Roman 
Senate  encroached  on  the  consuls,  though  it  was  neither  a  leg- 
islature nor  representative ;  the  Carthaginian  Councils  en- 
croached on  the  Suffetes ;  the  Venetian  Councils  encroached  on 
the  Doge.  Men  come  and  go,  but  an  assembly  goes  on  for 
ever ;  it  is  immortal,  because  while  the  members  change,  the 
])()li('y,  the  passion  for  extending  its  authority,  the  tenacity  in 
clinging  to  what  has  once  been  gained,  remain  persistent.  A 
weak  magistrate  comes  after  a  strong  magistrate,  and  yields 
what  his  predecessor  had  fought  for ;  but  an  assembly  holds  all 

He  h:is  very  little  patronage ;  and  he  has  no  foreign  policy  at  all.  The  State 
legislature  would  therefore  prevail  against  him  in  everything,  were  it  not  for 
his  veto  and  for  the  fact  that  the  legislature  is  now  generally  restrained  (hy 
the  provisions  of  the  State  constitution)  from  passing  laws  on  many  topics. 
(Seei^ost,  Chapters  XXXVII.-XLV.) 


CHAP.  XXI  LEGISLATURE   AND   EXECUTIVE  227 


it  has  ever  won.^  Its  pressure  is  steady  and  continuous ;  it  is 
always,  by  a  sort  of  natural  process,  expanding  its  own  powers 
and  devising  new  methods  for  fettering  its  rival.  Thus  Con- 
gress, though  it  is  no  more  respected  or  loved  by  the  people 
now  than  it  was  seventy  years  ago,  and  has  developed  no 
higher  capacity  for  promoting  the  best  interests  of  the  state, 
has  succeeded  in  occupying  nearly  all  the  ground  which  the 
Constitution  left  debatable  between  the  President  and  itself ;  ^ 
and  would,  did  it  possess  a  better  internal  organization,  be 
even  more  plainly  than  it  now  is  the  supreme  power  in  the 
government. 

In  their  effort  to  establish  a  balance  of  power,  the  fraiiiers 
of  the  Constitution  so  far  succeeded  that  neither  power  has 
subjected  the  other.  But  they  underrated  the  inconveniences 
which  arise  from  the  disjunction  of  the  two  chief  organs  of 
government.  They  relieved  the  Administration  from  a  duty 
which  European  ministers  find  exhausting  and  hard  to  reconcile 
with  the  proper  performance  of  administrative  work  —  the 
duty  of  giving  attendance  in  the  legislature  and  taking  the 
lead  in  its  debates.  They  secured  continuity  of  executive 
policy  for  four  years  at  least,  instead  of  leaving  government 
at  the  mercy  of  fluctuating  majorities  in  an  excitable  assembly. 
But  they  so  narrowed  the  sphere  of  the  executive  as  to  prevent 
it  from  leading  the  country,  or  even  its  own  party  in  the  coun- 
try. They  sought  to  make  members  of  Congress  independent, 
but  in  doing  so  they  deprived  them  of  some  of  the  means 
which  Eiu-opean  legislators  enjoy  of  learning  how  to  adminis- 
ter, of  learning  even  how  to  legislate  in  administrative  topics. 
They  condemned  them  to  be  architects  without  science,  critics 
without  experience,  censors  without  responsibility. 

1  This  is  still  more  conspicuously  the  case  when  the  members  of  the  execu- 
tive government  do  not  sit  in  the  assembly.  When  they  do,  and  lead  it,  their 
influence  tends  to  restrain  legislative  encroachments.  Even  the  presence  of 
persons  who  are  likely  to  be  soon  called  on  to  form  the  executive  has  its 
influence,  for  they  are  disposed  to  defend  the  constitutional  position  of  an 
authority  to  which  they  hope  in  their  turn  to  succeed.  This  has  been  fre- 
quently seen  in  England. 

2  The  modification  (in  1809)  and  repeal  (in  188(;)  of  the  Tenure  of  Olfice  Act 
(see  above,  p.  64)  are  scarcely  instances  to  the  contrary,  because  that  Act, 
even  if  constitutional,  had  proved  difficult  to  work. 


CHAPTER  XXII 

THE    FEDERAL    COURTS 

When  in  1788  the  loosely  confederated  States  of  North 
America  nnited  themselves  into  a  nation,  national  tribunals 
were  felt  to  be  a  necessary  part  of  the  national  government. 
Under  the  Confederation  there  had  existed  no  means  of  enforc- 
ing the  treaties  made  or  orders  issned  by  the  Congress,  because 
the  courts  of  the  several  States  owed  no  duty  to  that  feeble 
body,  and  had  little  will  to  aid  it.  Now  that  a  Federal  legis- 
lature had  been  established,  whose  laws  were  to  bind  directly 
the  individual  citizen,  a  Federal  jiidicature  was  evidently 
needed  to  interpret  and  apply  these  laws,  and  to  compel  obedi- 
ence to  them.  The  alternative  would  have  been  to  entrust 
the  enforcement  of  the  laws  to  State  courts.  But  State  courts 
were  not  fitted  to  deal  with  matters  of  a  quasi-international 
character,  such  as  admiralty  jurisdiction  and  rights  arising 
inider  treaties.  They  supplied  no  means  for  deciding  ques- 
tions between  different  States.  They  could  not  be  trusted  to 
do  complete  justice  between  their  own  citizens  and  those  of 
another  State.  Being  under  the  control  of  their  own  State 
governments,  they  might  be  forced  to  disregard  any  Federal 
law  which  the  State  disapproved ;  or  even  if  they  admitted 
its  authority,  might  fail  in  the  zeal  or  the  power  to  give  due 
effect  to  it.  And  being  authorities  co-ordinate  with  and  inde- 
pendent of  one  another,  with  no  common  court  of  appeal 
placed  over  them  to  correct  their  errors  or  harmonize  their 
views,  they  would  be  likely  to  interpret  the  Federal  Constitu- 
tion and  statutes  in  different  senses,  and  make  the  law  uncer- 
tain by  the  variety  of  their  decisions.  These  reasons  pointed 
imi){'ratively  to  the  establishment  of  a  new  tribunal  or  set  of 
trilninals,  altogether  detached  from  the  States,  as  part  of  the 
machinery  of  the  new  government.     Side  by  side  of  the  thir- 


CHAP.  XXII  THE   FEDERAL   COURTS  229 

teen  (now  forty-four)  different  sets  of  State  co\irts,  Avhose 
jurisdiction  under  State  laws  and  between  their  own  citizens 
was  left  untouched,  there  arose  a  new  and  complex  system  of 
Federal  courts.  The  Constitution  drew  the  outlines  of  the 
system.  Congress  perfected  it  by  statutes  ;  and  as  the  details 
rest  upon  these  statutes,  Congress  retains  the  power  of  altering 
them.  Few  American  institutions  are  better  worth  studying 
than  this  intricate  judicial  machinery :  few  deserve  more  ad- 
miration for  the  smoothness  of  their  working :  few  have  more 
contributed  to  the  peace  and  well-being  of  the  country. 

The  Federal  courts  fall  into  three  classes  :  — 

The  Supreme  court,  which  sits  at  Washington. 

The  Circuit  courts. 

The  District  courts. 

The  Supreme  court  is  directly  created  by  Art.  iii.  §  1  of  the 
Constitution,  but  with  no  provision  as  to  the  number  of  its 
judges.  Originally  there  were  six ;  at  present  there  are  nine, 
a  chief  justice,  with  a  salary  of  $10,500  (£2100),  and  eight 
associate  justices  (salary  $10,000).  Tlie  justices  are  nomi- 
nated by  the  President  and  confirmed  by  the  Senate.  They 
hold  ofl&ce  during  good  behaviour,  i.e.  are  removable  only  by 
impeachment ;  and  have  thus  a  tenure  even  more  secure  than 
that  of  English  judges,  for  the  latter  may  be  removed  by  the 
Crown  on  an  address  from  both  Houses  of  Parliament.^  More- 
over, the  English  statutes  secure  the  permanence  only  of  the 
judges  of  the  Supreme  court  of  judicature,  not  also  of  judges 
of  county  or  other  local  courts,  while  the  provisions  of  the 
American  Constitution  are  held  to  apply  to  the  inferior  as  well 
as  the  superior  Federal  judges.-  The  Fathers  of  the  Constitu- 
tion were  extremely  anxious  to  secure  the  independence  of 
their  judiciary,  regarding  it  as  a  bulwark  both  for  the  people 
and  for  the  States  against  aggressions  of  either  Congress  or 
the  President.^     They  affirmed  the  life  tenure  by  an  unani- 

1  12  and  13  William  III.,  cap.  2 ;  cf.  1  George  III.,  cap.  2.3.  The  occasional 
resistance  of  the  parliament  of  Paris,  whose  members  held  office  for  life,  to  the 
French  Crown  may  probably  have  confirmed  the  Convention  of  1787  in  its 
attachment  to  this  English  principle. 

2  The  United  States  judges  in  the  Territories  stand  on  a  different  footing. 
See  Chapter  XLYII. 

3  See  Hamilton  in  Federalist,  No.  Ixxviii. :  "  The  standard  of  good  behaviour 
for  the  continuance  in  office  of  the  judicial  magistracy  is  certainly  one  of  the 


2.S0  THE   NATIONAL   GOVERNMENT 


nious  vote  iu  the  Convention  of  1787,  because  they  deemed  the 
risk  of  the  continuance  in  office  of  an  incompetent  judge  a  less 
evil  than  the  subserviency  of  all  judges  to  the  legislature, 
wliich  might  flow  from  a  tenure  dependent  on  legislative  will. 
Tlie  residt  has  justitied  their  expectations.  The  judges  have 
shown  themselves  independent  of  Congress  and  of  party,  yet 
the  security  of  their  position  has  rarely  tempted  them  to 
breaches  of  judicial  duty.  Impeachment  has  been  four  times 
resorted  to,  once  only  against  a  justice  of  the  Supreme  court, 
and  then  unsuccessfully.^  Attempts  have  been  made,  begin- 
ning from  Jefferson,  who  argued  that  judges  should  hold 
office  for  terms  of  four  or  six  years  only,  to  alter  the  tenure  of 
the  Federal  judges,  as  that  of  the  State  judges  has  been  al- 
tered in  most  States  ;  but  Congress  has  always  rejected  the 
proposed  constitutional  amendment. 

The  Supreme  court  sits  at  Washington  from  October  till  July 
in  every  year.  The  presence  of  six  judges  is  reqiured  to  pro- 
nounce a  decision,  a  rule  which,  by  preventing  the  division  of 
the  court  into  two  or  more  branches,  retards  the  despatch  of 
business,  though  it  has  the  advantage  of  securing  a  thorough 
consideration  of  every  case.  The  sittings  are  held  in  the  Capi- 
tol, in  the  chamber  formerly  occupied  by  the  Senate,  and  the 
justices  wear  black  gowns,  being  not  merely  the  only  public 
officers,  but  almost  the  only  non-ecclesiastical  persons  of  any 
kind  whatever  within  the  bounds  of  the  United  States  who  use 
any  official  dress.^  Every  case  is  discussed  by  the  whole  body 
twice  over,  once  to  ascertain  the  opinion  of  the  majority,  which 
is  then  directed  to  be  set  forth  in  a  written  judgment;  then 
again  when  that  written  judgment,  which  one  of  the  judges  has 
prepared,  is  submitted  for  criticism  and  adoption  as  the  judg- 
ment of  the  court. 

most  valuable  of  the  modern  improvements  in  the  practice  of  government.  In  a 
monarchy  it  is  an  excellent  barrier  to  the  despotism  of  the  prince;  in  a  republic 
it  is  a  no  less  excellent  bari-ier  to  the  encroachments  and  oppressions  of  the 
legislative  body." 

1  This  was  Samuel  Chase  of  Maryland  in  1804-5.  The  other  cases  were  of 
district  Federal  judges.  Two  were  convicted  (one  of  violence,  apparently  due 
to  drunkenness  or  insanity,  the  other  of  rebellion),  the  third  was  acquitted. 

'-  Save  that  in  some  universities  the  president  and  professors,  and  (more 
rarely)  the  graduates,  wear  academic  gowns  on  great  occasions,  such  as  the 
annual  Commencement,  and  that  gowns  are  worn  by  the  judges  in  Federal  Cir- 
cuit Courts  and  by  the  judges  of  the  New  York  Court  of  Appeals. 


CHAP.  XXII  THE   FEDERAL   COURTS  231 


The  Circuit  courts  have  been  created  by  Congress  under  a 
power  in  the  Constitution  to  establish  "  inferior  courts."  There 
are  at  present  nine  judicial  circuits,  in  which  courts  are  held 
annually.  Each  of  these  has  two  Circuit  judges  (salary  $6000), 
and  to  each  there  is  also  allotted  one  of  the  justices  of  the 
Supreme  court.  The  Circuit  court  may  be  held  either  by  a 
Circuit  judge  alone,  or  by  the  Stvpreme  court  Circuit  justice 
alone,  or  by  both  together,  or  by  either  sitting  along  with  the 
District  judge  (hereafter  mentioned)  of  the  district  wherein 
the  particular  circuit  court  is  held,  or  by  the  District  judge 
alone.  A  statute  of  1891  has  established  Circuit  Courts  of 
Appeals,  to  which  cases  may  be  brought  from  District  or  Cir- 
cuit courts,  a  further  appeal  lying,  in  some  classes  of  cases,  to 
the  Supreme  court,  to  Avhich  moreover,  in  certain  cases,  a  di- 
rect appeal  from  the  District  or  Circuit  courts  may  still  be 
brought.  It  is  hoped  that  these  new  courts  will  relieve  the  Su- 
preme court  of  some  of  its  now  too  heavy  business. 

The  District  courts  are  the  third  and  lowest  class  of  Federal 
tribunals.  They  are  at  present  fifty-five  in  number,  and  their 
judges  receive  salaries  of  $5000  (£1000)  per  annum.  The 
Constitution  does  not  expressly  state  whether  they  and  the 
Circuit  judges' are  to  be  appointed  by  the  President  and  Sen- 
ate like  the  members  of  the  Supreme  court ;  but  it  has  always 
been  assumed  that  such  was  the  intention,  and  the  appoint- 
ments are  so  made  accordingly. 

For  the  purpose  of  dealing  with  the  claims  of  private  persons 
against  the  Federal  government  there  has  been  established  in 
Washington  a  special  tribunal  called  the  Court  of  Claims,  with 
five  justices  (salary  f  4500),  from  which  an  appeal  lies  direct 
to  the  Supreme  court. 

The  jurisdiction  of  the  Federal  courts  extends  to  the  follow- 
ing classes  of  cases,  on  each  of  which  I  say  no  more  than  Avhat 
seems  absolutely  necessary  to  explain  their  nature.^    All  other 

1  "All  the  enumerated  cases  of  Federal  cognizance  are  those  which  touch 
the  safety,  peace,  and  sovereignty  of  the  nation,  or  which  presume  that  State 
attachments,  State  prejudices,  State  jealousies,  and  State  interests  might 
sometimes  obstruct  or  control  the  regular  administration  of  justice.  The 
appellate  power  in  all  these  cases  is  founded  on  the  clearest  principles  of  policy 
and  wisdom,  and  is  necessary  in  order  to  preserve  uniformity  of  decision  upon 
all  subjects  within  the  purview  of  the  Constitution." —  Kent's  Commentaries 
(Holmes'  edition),  vol.  i.  p.  320. 


^32  THE   NATIONAL  GOVERNMENT 


cases  have  been  left  to  the  State  courts,  from  which  there  does 
not  lie  (save  as  hereinafter  specified)  any  appeal  to  the  Federal 

courts. 

1.  "  Cases  in  law  and  equity  arising  under  the  constitution, 
the  laws  of  the  United  States,  and  treaties  made  under  their 
autliority." 

In  order  to  enforce  the  supremacy  of  the  national  Constitu- 
tion and  laws  over  all  State  laws,  it  was  necessary  to  place  the 
former  under  the  guardianship  of  the  national  judiciary.  This 
provision  accordingly  brings  before  a  Federal  court  every  cause 
in  which  cither  party  to  a  suit  relies  upon  any  Federal  enact- 
ment. It  entitles  a  plaintiff  who  bases  his  case  on  a  Federal 
statute  to  bring  his  action  in  a  Federal  court :  it  entitles  a  de- 
fendant who  rests  his  defence  on  a  Federal  enactment  to  have 
the  action,  if  originally  brought  in  a  State  court,  removed  to  a 
Federal  court.^  But,  of  course,  if  the  action  has  originally 
been  brought  in  a  State  court,  there  is  no  reason  for  removing 
it  unless  the  authority  of  the  Federal  enactment  can  be  sup- 
posed to  be  questioned.  Accordingly,  the  rule  laid  down  by 
the  Judiciary  Act  (1789)  provides  "  for  the  removal  to  the 
supreme  court  of  the  United  States  of  the  final  judgment  or 
decree  in  any  siiit,  rendered  in  the  highest  court  of  law  or 
equity  of  a  State  in  which  a  decision  could  be  had,  in  which  is 
drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or  au- 
thority exercised  under,  the  United  States,  and  the  decision  is 
against  their  validity  ;  or  where  is  drawn  in  question  the  valid- 
ity of  a  statute  of,  or  an  authority  exercised  under,  any  State,  on 
tlie  ground  of  their  being  repugnant  to  the  Constitution,  treaties, 
or  laws  of  the  United  States,  and  the  decision  is  in  favour  of 
their  validity ;  or  where  any  title,  right,  privilege,  or  immunity 
is  claimed  under  the  Constitution,  or  any  treaty  or  statute  or  a 
commission  held  or  authority  exercised  under  the  United  States, 
and  the  decision  is  against  the  title,  right,  privilege,  or  immu- 
nity specially  set  up  or  claimed  by  either  party  under  such 
Constitution,  treaty,  statute,  commission,  or  authority.  But  to 
authorize  the  removal  under  that  act,  it  must  appear  by  the 
record,  either  expressly  or  by  clear  and  necessary  intendment, 
that  some  one  of  the  enumerated  questions  did  arise  in  the 

1  The  removal  may  be  before  or  after  judgment  given,  and  in  the  latter 
event,  by  way  of  appeal  or  by  writ  of  error. 


DHAP.  XXII  THE    FEDERAL   COURTS  233 


State  court,  aud  was  there  passed  upon.  It  is  not  sufficient 
that  it  might  have  arisen  or  been  applicable.  And  if  the  de- 
cision of  the  State  court  is  in  favour  of  the  right,  title,  privilege, 
or  exemption  so  claimed,  the  Judiciary  Act  does  not  authorize 
such  removal,  neither  does  it  where  the  validity  of  the  State  law 
is  drawn  in  question,  and  the  decision  of  the  State  court  is 
against  its  validity."  * 

The  rule  seems  intricate,  but  the  motive  for  it  and  the  work- 
ing of  it  are  plain.  Where  in  any  legal  proceeding  a  Federal 
enactment  has  to  be  construed  or  applied  by  a  State  court,  if 
the  latter  supports  the  Federal  enactment,  i.e.  considers  it  to 
govern  the  case,  and  applies  it  accordingly,  the  supremacy  of 
Federal  law  is  thereby  recognized  and  admitted.  There  is 
therefore  no  reason  for  removing  the  case  to  a  Federal  tri- 
bunal. Such  a  tribunal  could  do  no  more  to  vindicate  Federal 
authority  than  the  State  court  has  already  done.  But  if  the 
decision  of  the  State  court  has  been  against  the  applicability 
of  the  Federal  law,  it  is  only  fair  that  the  party  who  suffers 
by  the  decision  should  be  entitled  to  Federal  determination  of 
the  point,  and  he  has  accordingly  an  absolute  right  to  carry  it 
before  the  Supreme  court.^ 

The  principle  of  this  rule  is  applied  even  to  executive  acts 
of  the  Federal  authorities.  If,  for  instance,  a  person  has  been 
arrested  by  a  Federal  officer,  a  State  court  has  no  jurisdiction 
to  release  him  on  a  writ  of  habeas  corpus,  or  otherwise  to 
inquire  into  the  lawfulness  of  his  detention  by  Federal  author- 
ity, because,  as  was  said  by  Chief- Justice  Taney,  "The  powers 
of  the  general  government  and  of  the  State,  although  both 
exist  and  are  exercised  within  the  same  territorial  limits,  are 
yet  separate  and  distinct  sovereignties,  acting  separately  and 
independently  of  each  other,  within  their  respective  spheres. 

1  Cooley,  Constitutional  Limitations,  p.  IG.  For  details  regarding  the 
removal  of  suits,  and  the  restrictions  when  the  amount  in  dispute  is  small,  see 
Cooley,  Frinciples  of  Constitutional  Law,  p.  122  sqq. ;  and  see  also  the  Act  of 
3d  March  1887. 

2  Federal  legislation  may  however  he  in  a  given  case  needed  in  order  to  con- 
fer upon  Federal  courts  jurisdiction  over  cases  arising  under  a  treaty.  The 
question  arose  in  the  case  of  the  lynching  of  certain  Italians  at  New  Orleans 
in  1891.  The  Italian  Government  in  its  complaints  appealed  to  the  treaty  of 
1871  between  the  United  States  and  Italy,  but  it  seems  to  have  been  held  that 
Congress  had  not  legislated  so  as  to  enable  Federal  courts  to  deal  with  offences 
in  breach  of  that  treaty. 


2.34  THE   NATIONAL   GOVERNMENT 


Aud  the  sphere  of  action  appropriated  to  the  United  States  is 
as  far  beyond  the  reach  of  the  judicial  process  issued  by  a 
State  court  as  if  the  line  of  division  was  traced  by  landmarks 
and  monuments  visible  to  the  eye."  ^ 

2.  "  Cases  affecting  ambassadors,  other  public  ministers,  and 
consuls." 

As  these  persons  have  an  international  character,  it  would 
be  improper  to  allow  them  to  be  dealt  with  by  a  State  court 
which  has  nothing  to  do  with  the  national  government,  and 
for  whose  learning  and  respectability  there  may  exist  no  such 
securities  as  those  that  surround  the  Federal  courts. 

3.  "  Cases  of  admiralty  and  maritime  jurisdiction." 

These  are  deemed  to  include  not  only  prize  cases  but  all 
maritime  contracts,  and  all  transactions  relating  to  navigation, 
as  well  on  the  navigable. lakes  and  rivers  of  the  United  States 
as  on  the  high  seas. 

4.  "Controversies  to  which  the  United  States  shall  be  a 
party." 

This  provision  is  obviously  needed  to  protect  the  United 
States  from  being  obliged  to  sue  or  be  sued  in  a  State  court,  to 
whose  decision  the  national  government  could  not  be  expected 
to  submit.  When  a  pecuniary  claim  is  sought  to  be  estab- 
lished against  the  Federal  government,  the  proper  tribunal  is 
the  Court  of  Claims. 

5.  "  Controversies  between  two  or  more  States,  between  a 
State  and  citizens  of  another  State,  between  citizens  of  dif- 
ferent States,  between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  States,  citizens,  or  sub- 
jects." 

In  all  these  cases  a  State  court  is  likely  to  be,  or  at  any  rate 
to  seem,  a  partial  tribunal,  and  it  is  therefore  desirable  to  vest 
the  jurisdiction  in  judges  equally  unconnected  with  the  plain- 
tiff and  the  defendant.  By  securing  recourse  to  an  unbiassed 
and  competent  tribunal,  the  citizens  of  every  State  obtain  bet- 
ter commercial  facilities  than  they  could  otherwise  count  upon, 
for  their  credit  will  stand  higher  with  persons  belonging  to 
other  States  if  the  latter  know  that  their  legal  rights  are  under 
the  protection,  not  of  local  and  possibly  prejudiced  judges,  but 
1  Ableman  v.  Bootli,  21  How.  516. 


CHAP.  XXII  THE   FEDERAL   COURTS  235 

of  magistrates  named  by  the  national  government,  and  un- 
amenable to  local  influences.' 

One  important  part  of  the  jurisdiction  here  conveyed  has 
been  subsequently  withdrawn  from  the  Federal  judicature. 
When  the  Constitution  was  submitted  to  the  people,  a  principal 
objection  urged  against  it  was  that  it  exposed  a  State,  although 
a  sovereign  commonwealth,  to  be  sued  by  the  individual  citi- 
zens of  some  other  State.  That  one  State  should  sue  another 
was  perhaps  necessary,  for  what  other  way  could  be  discovered 
of  terminating  disputes  ?  But  the  power  as  well  as  the  dig- 
nity of  a  State  would  be  gone  if  it  could  be  dragged  into  court 
by  a  private  plaintiff.  Hamilton  (writing  in  the  Federalist) 
met  the  objection  by  arguing  that  the  jurisdiction-giving  clause 
of  the  Constitution  ought  not  to  be  so  construed,  but  must 
be  read  as  being  subject  to  the  general  doctrine  that  a  sovereign 
body  cannot  be  sued  by  an  individual  without  its  own  consent, 
a  doctrine  not  to  be  excluded  by  mere  implication  but  only  by 
express  words.-  However,  in  1793  the  Supreme  court,  in  the 
famous  case  of  Chislwlm  v.  The  State  of  Georgia,^  construed 
the  Constitution  in  the  very  sense  which  Hamilton  had  denied, 
holding  that  an  action  did  lie  against  Georgia  at  the  suit  of  a 
private  plaintiff: ;  and  when  Georgia  protested  and  refused  to 
appear,  the  court  proceeded  (in  1794)  to  give  judgment  against 
her  by  default  in  case  she  should  not  appear  and  plead  before 
a  day  fixed.  Her  cries  of  rage  filled  the  Union,  and  brought 
other  States  to  her  help.  An  amendment  (the  eleventh)  to 
the  Constitution  was  passed  through  Congress  and  duly 
accepted  by  the  requisite  majority  of  the  States,  which  de- 
clares that  "the  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State  or 
by  citizens  or  subjects  of  any  foreign  state."  *    Under  the  protec- 

1  There  are  countries  in  Europe  with  which  foreign  merchants  are  unMilling 
to  do  business  because  tliey  can  seldom  obtain  justice  against  a  native.  Local 
feeling  was,  of  course,  much  stronger  in  the  America  of  1787  than  it  is  no\y. 
Englishmen  who  had  claims  against  American  citizens  failed  to  obtain  their 
enforcement  from  1783  till  the  Federal  courts  were  established  in  1789. 

2  Federalist,  No.  Ixxxi.  The  same  view  was  contemporaneously  maintained 
by  John  Marshall  (afterwards  Chief-Justice)  in  the  Virginia  Convention  of 
1788. 

3  2  Ball.  419. 

*  It  has  been  held  that  the  amendment  applies  only  when  a  .State  is  a  party 


236  THE   NATIONAL   GOVERNMENT 


tion  of  this  aineiubiieut,  several  have  with  impunity  repudi- 
ated their  debts. 

The  jurisdiction  of  the  Supreme  court  is  original  in  cases 
affi'C'ting  auihassadors,  and  wherever  a  State  is  a  party ;  in 
other  cases  it  is  a])penate ;  that  is,  cases  may  be  brought  to  it 
from  the  inferior  Federal  courts  and  (under  the  circumstances 
before  mentioned)  from  State  courts.  The  jurisdiction  is  in 
some  matters  exclusive,  in  others  concurrent  with  that  of  the 
State  courts.  Upon  these  subjects  there  have  arisen  many 
difficult  and  intricate  questions,  which  I  must  pass  by,  because 
tlicy  would  be  unintelligible  without  long  explanations.^  One 
point,  hoAvever,  may  be  noted.  The  State  courts  cannot  be  in- 
vested by  Congress  with  any  jurisdiction,  for  Congress  has  no 
authority  over  them,  and  is  not  permitted  by  the  Constitution 
to  delegate  any  judicial  powers  to  them.  Hence  the  jurisdic- 
tion of  a  State  court,  wherever  it  is  concurrent  with  that  of 
Federal  judges,  is  a  jurisdiction  which  the  court  possesses  of 
its  own  right,  independent  of  the  Constitution.  And  in  some 
instances  where  congressional  statutes  have  purported  to  im- 
pose duties  on  State  courts,  the  latter  have  refused  to  accept 
and  discharge  them. 

The  criminal  jurisdiction  of  the  Federal  courts,  which  extends 
to  all  offences  against  Federal  law,  is  purely  statutory.  "  The 
United  States  as  such  can  have  no  common  law.  It  derives  its 
powers  from  the  grant  of  the  people  made  by  the  Constitution, 
and  they  are  all  to  be  found  in  the  written  law,  and  not  else- 
where." - 

The  procedure  of  the  Federal  courts  is  prescribed  by  Congress, 
subject  to  some  few  rules  contained  in  the  Constitution,  such  as 
those  which  preserve  the  right  of  trial  by  jury  in  criminal  cases  ^ 
and  suits  at  common  law.''  As  "  cases  in  law  and  equity  "  are 
mentioned,  it  is  held  that  Congress  could  not  accomplish  such 

to  the  record,  and  therefore  does  not  apply  to  the  case  of  a  State  holding  shares 
in  a  corporation.     Neither  does  it  apply  to  appeals  and  writs  of  error. 

Very  recently  (March  1892)  the  Supreme  court  have  decided  (by  a  large 
majority)  in  the  case  of  United  States  v.  Texas  that  the  United  States  can  sue 
a  State. 

1  The  lawyer  curious  in  such  matters  may  consult  Story's  Commentaries  on 
the  Constitution,  chapter  xxxviii.,  and  the  judgments  of  Chief-Justice  Marshall 
in  the  cases  of  Martin  v.  Hunter  (1  Wheat.  304)  and  Cohens  v.  Virginia 
(li  Wheat.  40(i). 

2  Cooley,  Principles,  p.  131.  a  Art.  iii.  §  l'.  4  Amendment  vii.  §  1. 


CHAP.  XXII  THE   FEDERAL   COURTS  237 

a  fusion  of  law  and  equity  as  has  been  effected  in  several  States 
of  the  Union,  and  was  effected  in  England  in  1878,  but  must 
maintain  these  methods  of  procedure  as  distinct,  though  ad- 
ministered by  the  same  judges. 

The  law  applied  in  the  Federal  courts  is  of  course  first  and 
foremost  that  enacted  by  the  Federal  legislature,  which,  when 
it  is  applicable,  prevails  against  any  State  law.  But  very  often, 
as  for  instance  in  suits  between  citizens  of  different  States, 
Federal  law  does  not,  or  does  only  in  a  secondary  way,  come 
in  question.  In  such  instances  the  first  thing  is  to  determine 
what  law  it  is  that  ought  to  govern  the  case,  each  State  having 
a  law  of  its  own ;  and  when  this  has  been  ascertained,  it  is 
apj)lied  to  the  facts,  just  as  an  English  court  would  apply 
French  or  Scotch  law  in  pronouncing  on  the  validity  of  a  mar- 
riage contracted  in  France  or  Scotland.  In  administering  the 
law  of  any  State  (including  its  constitution,  its  statutes,  and 
its  common  law,  which  in  Louisiana  is  the  civil  law  in  its 
French  form)  the  Federal  courts  ought  to  follow  the  decisions 
of  the  State  courts,  treating  those  decisions  as  the  highest  au- 
thority on  the  law  of  the  particular  State.  This  doctrine  is  so 
fully  applied  that  the  Supreme  court  has  even  over-ruled  its 
own  previous  determinations  on  a  point  of  State  law  in  order 
to  bring  itself  into  agreement  with  the  view  of  the  highest  court 
of  the  particular  State.  Needless  to  say,  the  State  courts  fol- 
low the  decisions  of  the  Federal  courts  upon  questions  of  Fed- 
eral law.^ 

For  the  execution  of  its  powers  each  Federal  court  has 
attached  to  it  an  officer  called  the  United  States  marshal,  cor- 
responding to  the  sheriff  in  the  State  governments,  whose  duty 
it  is  to  carry  out  its  writs,  judgments,  and  orders  by  arresting 
prisoners,  levying  execution,  putting  persons  in  possession,  and 
so  forth.  He  is  entitled,  if  resisted,  to  call  on  all  good  citizens 
for  help ;  if  they  will  not  or  cannot  render  it,  he  must  refer  to 

1  "The  judicial  department  of  every  goverDinent  is  the  appropriate  organ 
for  construing  the  legislative  acts  of  that  government.  .  .  .  On  this  principle 
the  construction  given  by  this  (the  supreme)  court  to  the  Constitution  and 
Laws  of  the  United  States  is  received  by  all  as  the  true  construction ;  and  on 
the  same  principle  the  construction  given  by  the  courts  of  the  various  States  to 
the  legislative  acts  of  those  States  is  received  as  true,  unless  they  come  in  con- 
flict with  the  Constitution,  laws,  or  treaties  of  the  United  States."  — Marshall, 
C.-J.,  in  Elmendorf  v.  Taylor,  10  Wheat.  109. 


238 


THE   NATIONAL   GOVERNMENT 


Washington  and  obtain  the  aid  of  Federal  troops.  There  exists 
also  in  every  judiciary  district  a  Federal  public  prosecutor, 
called  the  United  States  district  attorney,  Avho  institutes  pro- 
ceedings against  persons  transgressing  Federal  laws  or  evading 
the  discharge  of  obligations  to  the  Federal  treasury.  Both  sets 
of  officials  are  uiider  the  direction  of  the  attorney-general,  as 
head  of  the  department  of  justice.  They  constitute  a  net-work 
of  Federal  authorities  covering  the  whole  territory  of  the  Union, 
and  independent  of  the  officers  of  the  State  courts  and  of 
the  public  prosecutors  who  represent  the  State  governments. 
Where  a  State  maintains  a  gaol  for  the  reception  of  Federal 
prisoners,  the  U.  S.  marshal  delivers  his  prisoners  to  the  State 
gaoler;  where  this  provision  is  wanting,  he  must  himself 
arrange  for  their  custody. 

The  European  reader  may  ask  how  it  is  possible  to  work  a 
system  so  extremely  complex,  under  which  every  yard  of 
ground  in  the  Union  is  covered  by  two  jurisdictions,  with  two 
sets  of  judges  and  two  sets  of  officers,  responsible  to  different 
superiors,  their  spheres  of  action  divided  only  by  an  ideal  line, 
and  their  action  liable  in  practice  to  clash.  The  answer  is  that 
the  system  does  work,  and  now,  after  a  hundred  years  of  ex- 
perience, works  smoothly.  It  is  more  costly  than  the  simpler 
systems  of  France,  Prussia,  or  England,  though,  owing  to  the 
small  salaries  paid,  the  expense  falls  rather  on  litigants  than  on 
the  public  treasury.  But  it  leads  to  few  conflicts  or  heart- 
burnings, because  the  key  to  all  difficulties  is  found  in  the 
princi})le  that  wherever  Federal  law  is  applicable  Federal  law 
must  prevail,  and  that  every  suitor  who  contends  that  Federal 
law  is  applicable  is  entitled  to  have  the  point  determined  by  a 
Federal  court.  The  acumen  of  the  lawyers  and  judges,  the 
wealth  of  accumulated  precedents,  make  the  solution  of  these 
questions  of  applicability  and  jurisdiction  easier  than  a  Euro- 
pean practitioner  can  realize  :  while  the  law-abiding  habits  of 
the  people  and  their  sense  that  the  supremacy  of  Federal  law 
and  jurisdiction  works  to  the  common  benefit  of  the  whole 
people,  secure  general  obedience  to  Federal  judgments.  The 
enforcement  of  the  law,  especially  the  criminal  law,  in  some 
parts  of  America  leaves  much  to  be  desired ;  but  the  difficulties 
which  arise  are  now  due  not  to  conflicts  between  State  and 
Federal  pretensions  but  to  other  tendencies  equally  hostile  to 
both  authorities. 


CHAP.  XXII  THE   FEDERAL   COURTS  239 

A  word  in  conclusion  as  to  tlie  separation  of  the  judicial 
from  the  other  two  departments,  a  point  on  which  the  framers 
of  the  Constitution  laid  great  stress.  The  functions  of  the 
legislature  are  more  easily  distinguished  from  those  of  the 
judiciary  than  from  those  of  the  executive.  The  legislature 
makes  the  law,  the  judiciary  applies  it  to  particular  cases  by 
investigating  the  facts  and,  when  these  have  been  ascertained, 
by  declaring  what  rule  of  law  governs  them.  Nevertheless 
there  are  certain  points  in  which  the  two  departments  touch, 
certain  ground  debatable  between  the  judiciary  on  the  one 
hand  and  the  legislature  on  the  other.  In  most  countries  the 
courts  have  grown  out  of  the  legislature  ;  or  rather,  the  sover- 
eign body,  Avhich,  like  Parliament,  was  originally  both  a  law 
court  and  a  legislature,  has  delivered  over  the  bulk  of  its  judi- 
cial duties  to  other  persons,  while  retaining  some  few  to  be 
still  exercised  by  itself. 

America  has  in  general  followed  the  principles  and  practice 
of  England.  Like  England,  she  creates  no  separate  acbninistra- 
tive  tribunals  such  as  exist  in  the  states  of  the  European  con- 
tinent, but  allows  officials  to  be  sued  in  or  indicted  before 
the  ordinary  courts.  Like  England,  she  has  given  the  judges 
(i.e.  the  Federal  judges)  a  position  secured  against  the  caprice 
of  the  legislature  or  executive.  Like  England,  she  recognizes 
judicial  decisions  as  law  until  some  statute  has  set  them  aside. 
In  one  respect  she  has  improved  on  England  —  viz.  in  forbid- 
ding the  legislature  to  exercise  the  powers  of  a  criminal  court, 
by  passing  acts  of  attainder  or  of  pains  and  penalties,  measures 
still  legal,  though  virtually  obsolete,  in  England.^  In  others, 
she  stands  behind  England.  England  has  practically  ceased  to 
use  one  branch  of  her  Parliament  as  a  court  for  the  trial  of 
impeachments.  America  still  occasionally  throws  upon  one 
House  of  Congress  this  function ;  which,  though  it  is  ill  suited 
to  an  ordinary  court  of  justice,  is  scarcely  better  discharged  by 
a  political  assembly.  England  has  remitted  to  the  courts  of 
law  the  trial  of  disputed  parliamentary  elections  ;  America  still 
reserves  these  for  Congress,  and  allows  them  to  be  disposed 
of  by  partisan  votes,  often  with  little  regard  to  the  merits. 

1  Neither  House  of  Congress  can  punish  a  witness  for  contempt,  after  the 
fashion  of  the  British  Parliament  {Kilhournv.  Thompson,  103  U.  S.  p.  168). 
See  note  to  Chapter  XXXIH.  post. 


240  THE   NATIONAL   GOVERNMENT 


Special  and  local  bills  which  vest  in  private  hands  certain 
rights  of  the  State,  such  as  public  franchises,  or  the  power 
of  taking  private  property  against  the  owner's  will,  are,  though 
in  form  exercises  of  legislative  power,  really  fitter  to  be  exam- 
ined and  settled  by  judicial  methods  than  by  the  loose  opinion, 
the  private  motives,  the  lobbying,  which  determine  legislative 
decisions  where  the  control  of  public  opinion  is  insufficiently 
provided  for.  England  accordingly,  though  she  refers  such 
bills  to  committees  of  Parliament,  directs  these  committees  to 
apply  a  quasi-judicial  procedure,  and  to  decide  according  to  the 
evidence  tendered.  America  takes  no  such  securities,  but  han- 
dles these  bills  like  any  others.  Here  therefore  we  see  three 
pieces  of  ground  debatable  between  the  legislature  and  the 
judiciary.  All  of  them  originally  belonged  to  the  legislature. 
All  in  America  still  belong  to  it.  England,  however,  has 
abandoned  the  first,  has  delivered  over  the  second  to  the 
judges,  and  treats  the  third  as  matter  to  be  dealt  with  by  judi- 
cial rather  than  legislative  methods.  Such  points  of  difference 
are  worth  noting,  because  the  impression  has  prevailed  in 
Europe  that  America  is  the  country  in  which  the  province  of 
the  judiciary  has  been  most  widely  extended. 


CHAPTER  XXIII 

THE    COURTS    AND    THE    COXSTITUTION 

No  feature  in  the  governiiient  of  the  United  States  has 
awakened  so  much  curiosity  in  the  European  mind,  caused  so 
much  discussion,  received  so  much  admiration,  and  been  more 
frequently  misunderstood,  than  the  duties  assigned  to  the 
Supreme  Court  and  the  functions  which  it  discharges  in  guard- 
ing the  ark  of  the  Constitution.  Yet  there  is  really  no  mystery 
about  the  matter.  It  is  not  a  novel  device.  It  is  not  a  com- 
plicated device.  It  is  the  simplest  thing  in  the  world  if  ap- 
proached from  the  right  side. 

In  England,  and  many  other  modern  States  there  is  no  differ- 
ence in  authority  between  one  statute  and  another.  All  are 
made  by  the  legislature  :  all  can  be  changed  by  the  legislature. 
What  are  called  in  England  constitutional  statutes,  such  as 
Magna  Charta,  the  Bill  of  Eights,  the  Act  of  Settlement,  the 
Acts  of  Union  with  Scotland  and  Ireland,  are  merely  ordinary 
laws,  which  could  be  repealed  by  Parliament  at  any  moment  in 
exactly  the  same  way  as  it  can  repeal  a  highway  act  or  lower 
the  duty  on  tobacco.^  The  habit  has  grown  up  of  talking  of 
the  British  Constitution  as  if  it  Avere  a  fixed  and  definite  thing. 
But  there  is  in  England  no  such  thing  as  a  Constitution  apart 
from  the  rest  of  the  law :  there  is  merely  a  mass  of  law,  con- 
sisting partly  of  statutes  and  partly  of  decided  cases  and  ac- 
cepted usages,  in  conformity  with  which  the  government  of 
the  country  is  carried  on  from  day  to  day,  but  which  is  being 
constantly  modified  by  fresh  statutes  and   cases.     The  same 

1  This  doctrine,  although  long  since  well  settled,  would  not  have  been  gener- 
ally accepted  in  the  beginning  of  the  seventeenth  century.  As  Sir  Thomas 
More  had  maintained  that  an  Act  of  Parliament  could  not  make  the  king 
supreme  head  of  the  Church,  so  Coke  held  that  the  Common  Law  controlled 
Acts  of  Parliament  and  adjudged  tliem  void  when  against  common  right. 
VOL.  IK  241 


242  THE   NATIONAL   GOVERNMENT 


thing  existed  in  ancient  Eonie,  and  everywhere  in  Europe  a 
century  ago.  It  is,  so  to  speak,  the  "natural,"  and  used  to  be 
the  normal,  condition  of  things  in  all  countries,  free  or  des- 
potic. 

The  condition  of  America  is  wholly  different.  There  the 
name  Constitution  designates  a  particular  instrument  adopted 
in  1788,  amended  in  some  points  since,  which  is  the  foundation 
of  the  national  government.  This  Constitution  was  ratified 
and  made  binding,  not  by  Congress,  but  by  the  people  acting 
through  conventions  assembled  in  the  thirteen  States  which 
then  composed  the  Confederation.  It  created  a  legislature  of 
two  houses ;  but  that  legislature,  which  we  call  Congress,  has 
no  power  to  alter  it  in  the  smallest  particular.  That  which  the 
people  have  enacted,  the  people  only  can  alter  or  repeal. 

Here  therefore  we  observe  two  capital  differences  between 
England  and  the  United  States.  The  former  has  left  the  out- 
lines as  well  as  the  details  of  her  system  of  government  to  be 
gathered  from  a  multitude  of  statutes  and  cases.  The  latter 
has  drawn  them  out  in  one  comprehensive  fundamental  enact- 
ment. The  former  has  placed  these  so-called  constitutional 
laws  at  the  mercy  of  her  legislature,  which  can  abolish  when 
it  pleases  any  institution  of  the  country,  the  Crown,  the  House 
of  Lords,  the  Established  Church,  the  House  of  Commons,  Par- 
liament itself.^  The  latter  has  placed  her  Constitution  alto- 
gether out  of  the  reach  of  Congress,  providing  a  method  of 
amendment  whose  difficulty  is  shown  by  the  fact  that  it  has 
been  very  sparingly  used. 

In  England  Parliament  is  omnipotent.  In  America  Congress 
is  doubly  restricted.  It  can  make  laws  only  for  certain  pur- 
poses specified  in  the  Constitution,  and  in  legislating  for  these 
purposes  it  must  not  transgress  any  provision  of  the  Constitu- 
tion itself.     The  stream  cannot  rise  above  its  source. 

1  Parliament  of  course  cannot  restrict  its  own  powers  by  any  particular  Act 
because  tbat  Act  might  be  repealed  in  a  subsequent  session,  and  indeed  any 
subsequent  Act  inconsistent  with  any  of  its  provisions  repeals  ipso  facto  that 
provision.  (For  instance,  the  Act  of  Union  with  Scotland  (6  Anne,  c.  11) 
declared  certain  provisions  of  the  Union,  for  the  establishment  of  Presbyterian 
church  government  in  Scotland,  to  be  "  essential  and  fundamental  parts  of  the 
Union,"  but  some  of  those  provisions  have  been  altered  by  subsequent 
statutes.)  Parliament  could,  however,  extinguish  itself  by  formally  dissolving 
itself,  leaving  no  legal  means  whereby  a  subsequent  Parliament  could  be 
Euranioned. 


CHAP.  XXIII     THE   COURTS  AND  THE   CONSTITUTION  243 

Suppose,  however,  that  Congress  does  so  transgress,  or  does 
overpass  the  specified  purposes.  It  may  do  so  intentionally : 
it  is  likely  to  do  so  inadvertently.  AVhat  happens  ?  If  the 
Constitution  is  to  be  respected,  there  must  be  some  means  of 
securing  it  against  Congress.  If  a  usurpation  of  power  is  at- 
tempted, how  is  it  to  be  checked  ?  If  a  mistake  is  committed, 
who  sets  it  right  ? 

The  point  may  be  elucidated  by  referring  it  to  a  wider  cate- 
gory, familiar  to  lawyers  and  easily  comprehensible  by  laymen, 
that  of  acts  done  by  an  agent  for  a  principle.  If  a  land-owner 
directs  his  bailiff  to  collect  rents  for  him,  or  to  pay  debts  due 
to  tradesmen,  the  bailiff  has  evidently  no  authority  to  bind  his 
employer  by  any  act  beyond  the  instructions  given  him,  as,  for 
instance,  by  contracting  to  buy  a  field.  If  a  manufacturer 
directs  his  foreman  to  make  rules  for  the  hours  of  work  and 
meals  in  the  factory,  and  the  foreman  makes  rules  not  only  for 
those  purposes,  but  also  prescribing  what  clothes  the  workmen 
shall  wear  and  what  church  they  shall  attend,  the  latter  rules 
have  not  the  force  of  the  employer's  will  behind  them,  and  the 
workmen  are  not  to  be  blamed  for  neglecting  them. 

The  same  principle  applies  to  public  agents.  In  every  coun- 
try it  happens  that  acts  are  directed  to  be  done  and  rules  to  be 
made  by  bodies  which  are  in  the  position  of  agents,  i.e.  which 
have  received  from  some  superior  authority  a  limited  power  of 
acting  and  of  rule-making,  a  power  to  be  used  only  for  certain 
purposes  or  under  certain  conditions.  Where  this  power  is 
duly  exercised,  the  act  or  rule  of  the  subordinate  body  has  all 
the  force  of  an  act  done  or  rule  made  by  the  superior  author- 
ity, and  is  deemed  to  be  made  by  it.  And  if  the  latter  be  a 
law-making  body,  the  rule  of  the  subordinate  body  is  therefore 
also  a  law.  But  if  the  subordinate  body  attempts  to  transcend 
the  power  committed  to  it,  and  makes  rules  for  other  purposes 
or  under  other  conditions  than  those  specified  by  the  superior 
authority,  these  rules  are  not  law,  but  are  null  and  void. 
Their  validity  depends  on  their  being  within  the  scope  of  the 
law-making  power  conferred  by  the  superior  authority,  and  as 
they  have  passed  outside  that  scope  they  are  invalid.  They 
do  not  justify  any  act  done  under  them  forbidden  by  the  ordi- 
nary law.  They  ought  not  to  be  obeyed  or  in  any  way  regarded 
by  the  citizens,  because  they  are  not  law. 


244  THE   NATIONAL   GOVERNMENT 


The  same  principle  applies  to  acts  done  by  an  executive 
officer  beyond  the  scope  of  his  legal  authority.  In  free  coun- 
tries an  individual  citizen  is  justified  in  disobeying  the  orders  of 
a  magistrate  if  he  correctly  thinks  these  orders  to  be  in  excess 
of  the  magistrate's  legal  power,  because  in  that  case  they  are 
not  really  the  orders  of  a  magistrate,  but  of  a  private  person 
affecting  to  act  as  a  magistrate.  In  England,  for  instance,  if 
a  secretary  of  state,  or  a  police  constable,  does  any  act  which 
the  citizen  affected  by  it  rightly  deems  unwarranted,  the 
citizen  may  resist,  by  force  if  necessary,  relying  on  the  ordi- 
nary courts  of  the  land  to  sustain  him.  This  is  a  consequence 
of  the  English  doctrine  that  all  executive  power  is  strictly 
limited  by  the  law,  and  is  indeed  a  corner-stone  of  English 
liberty.^  It  is  applied  even  as  against  the  dominant  branch  of 
the  legislature.  If  the  House  of  Commons  should  act  in 
excess  of  the  power  which  the  law  and  custom  of  Parliament 
has  secured  to  it,  a  private  individual  may  resist  the  officers  of 
the  House  and  the  courts  will  protect  him  by  directing  him  to 
be  acquitted  if  he  is  prosecuted,  or,  if  he  is  plaintiff  in  a  civil 
action,  by  giving  judgment  in  his  favour. 

An  obvious  instance  of  the  way  in  which  rules  or  laws  made 
by  subordinate  bodies  are  treated  is  afforded  by  the  bye-laws 
made  by  an  English  railway  company  or  municipal  corpora- 
tion under  powers  conferred  by  an  Act  of  Parliament.  So 
long  as  these  bye-laws  are  within  the  scope  of  the  authority 
which  the  Act  of  Parliament  has  given,  they  are  good,  i.e.  they 
are  laws,  just  as  much  as  if  enacted  in  the  Act.  If  they  go 
beyond  it,  they  are  bad,  that  is  to  say,  they  bind  nobody  and 
cannot  be  enforced.  If  a  railway  company  which  has  received 
power  to  make  bye-laws  imposing  fines  up  to  the  amount  of 
forty  shillings,  makes  a  bye-law  punishing  any  person  who 
enters  or  quits  a  train  in  motion  with  a  fine  of  fifty  shillings 
or  a  week's  imprisonment,  that  bye-law  is  invalid,  that  is  to 
say,  it  is  not  law  at  all,  and  no  magistrate  can  either  imprison 
or  impose  a  fine  of  fifty  shillings  on  a  person  accused  of  con- 
travening it.  If  a  municipal  corporation  has  been  by  statute 
empowered  to  enter  into  contracts  for  the  letting  of  lands 

1  See  as  to  the  different  doctrine  and  practice  of  the  European  continent,  and 
particularly  as  to  the  "  administrative  law  "  of  France,  the  instructive  remarks 
of  Mr.  Dicey  in  his  Law  of  the  Constitution. 


CHAP.  XXIII     THE  COURTS  AND  THE   CONSTTrUTION  245 

vested  in  it,  and  directed  to  make  bye-laws,  for  the  purpose  of 
letting,  which  shall  provide,  among  other  things,  for  the  adver- 
tising of  all  lands  intended  to  be  let,  and  if  it  makes  a  bye-law 
in  which  no  provision  is  made  for  advertising,  and  under  that 
bye-law  contracts  for  the  letting  of  a  piece  of  land,  the  letting 
made  in  pursuance  of  this  bye-law  is  void,  and  conveys  no  title 
to  the  purchaser.  All  this  is  obvious  to  a  lay  as  well  as  to  a 
legal  mind ;  and  it  is  no  less  obvious  that  the  question  of  the 
validity  of  the  bye-law,  and  of  what  has  been  done  under  it, 
is  one  to  be  decided  not  by  the  municipal  corporation  or  com- 
pany, but  by  the  courts  of  justice  of  the  land. 

Now,  in  the  United  States  the  position  of  Congress  may  for 
this  purpose  be  compared  to  that  of  an  English  municipal  cor- 
poration or  railway  company.  The  supreme  law-making  power 
is  the  People,  that  is,  the  qualified  voters,  acting  in  a  pre- 
scribed way.  The  people  have  by  their  supreme  law,  the  Con- 
stitution, given  to  Congress  a  delegated  and  limited  power  of 
legislation.  Every  statute  passed  under  that  poAver  conform- 
ably to  the  Constitution  has  all  the  authority  of  the  Consti- 
tution behind  it.  Any  statute  passed  which  goes  beyond  that 
power  is  invalid,  and  incapable  of  enforcement.  It  is  in  fact 
not  a  statute  at  all,  because  Congress  in  passing  it  was 
not  really  a  law-making  body,  but  a  mere  group  of  private 
persons. 

Says  Chief-Justice  Marshall,  "  The  powers  of  the  legislature 
are  defined  and  limited ;  and  that  those  limits  may  not  be  mis- 
taken or  forgotten,  the  Constitution  is  written.  To  what  pur- 
pose are  powers  limited  and  to  what  purpose  is  that  limitation 
committed  to  writing,  if  those  limits  may  at  any  time  be 
passed  by  those  intended  to  be  restrained  ?  The  Constitution 
is  either  a  superior  paramount  law,  unchangeable  by  ordinary 
means,  or  it  is  on  a  level  with  ordinary  legislative  acts,  and 
like  any  other  acts,  is  alterable  when  the  legislature  shall 
please  to  alter  it.  If  the  former  part  of  the  alternative  be  true, 
then  a  legislative  act  contrary  to  the  Constitution  is  not  law. 
If  the  latter  part  be  true,  then  written  constitutions  are 
absurd  attempts  on  the  part  of  the  people  to  limit  a  power  in 
its  own  nature  illimitable."  There  is  of  course  this  enormous 
difference  between  Congress  and  any  subordinate  law-making 
authority  in  England,  that    Congress  is    supreme  within  its 


240  THE   NATIONAL   GOVERNMENT 


proper  sphere,  the  people  having  no  higher  permanent  organ 
to  override  or  repeal  such  statutes  as  Congress  may  pass  with- 
in that  sphere ;  whereas  in  England  there  exists  in  Parliament 
a  constantly  present  supervising  authority,  which  may  at  any 
moment  cancel  or  modify  what  any  siibordinate  body  may  have 
enacted,  whether  Avithin  or  Avithout  the  scope  of  its  delegated 
poAvers.  This  is  a  momentous  distinction.  But  it  does  not 
affect  the  special  point  AA'hich  I  desire  to  illustrate,  viz.  that  a 
statute  passed  by  Congress  beyond  the  scope  of  its  powers  is 
of  no  more  effect  than  a  bye-laAv  made  ultra  vires  by  an  English 
municipality.  There  is  no  mystery  so  far  :  there  is  merely  an 
aj^plication  of  the  ordinary  principles  of  the  law  of  agency. 
But  the  question  remains,  Hoav  and  by  Avhom,  in  case  of  dis- 
pute, is  the  validity  or  invalidity  of  a  statute  to  be  deter- 
mined ? 

Such  determination  is  to  be  effected  by  setting  the  statute 
side  by  side  with  the  Constitution,  and  considering  whether 
there  is  any  discrepancy  betAveen  them.  Is  the  purpose  of  the 
statute  one  of  the  purposes  mentioned  or  implied  in  the  Con- 
stitution ?  Does  it  in  pursuing  that  purpose  contain  anything 
which  violates  any  clause  of  the  Constitution  ?  Sometimes 
this  is  a  simple  question,  which  an  intelligent  layman  may 
ansAver.  More  frequently  it  is  a  difficult  one,  which  needs  not 
only  the  subtlety  of  the  trained  laAvyer,  but  a  knowledge  of 
former  cases  AA'hich  liaA^e  thrown  light  on  the  same  or  a  similar 
point.  In  any  event  it  is  an  important  question,  whose  solution 
ought  to  proceed  from  a  Aveighty  authority.  It  is  a  question 
of  interpretation,  that  is,  of  determining  the  true  meaning  both 
of  the  superior  law  and  of  the  inferior  law,  so  as  to  discover 
Avhether  they  are  inconsistent. 

Now  the  interpretation  of  laws  belongs  to  courts  of  justice. 
A  laAv  implies  a  tribunal,  not  only  in  order  to  direct  its  enforce- 
ment against  individuals,  but  to  adjust  it  to  the  facts,  i.e.  to 
determine  its  precise  meaning  and  apply  that  meaning  to  the 
circumstances  of  the  particular  case.  The  legislature,  which 
can  only  speak  generally,  makes  every  law  in  reliance  on  this 
poAver  of  interpretation.  It  is  therefore  obvious  that  the 
question,  whether  a  congressional  statute  offends  against  the 
Constitution,  must  be  determined  by  the  courts,  not  merely 
because  it  is  a  question  of  legal  construction,  but  because  there 


CHAP,  xxiii     THE  COURTS  AND  THE  CONSTITUTION  247 

is  nobody  else  to  determine  it.  Congress  cannot  do  so,  because 
Congress  is  a  party  interested.  If  such  a  body  as  Congress 
were  permitted  to  decide  whether  the  acts  it  had  passed  were 
constitutional,  it  would  of  course  decide  in  its  own  favour,  and 
to  allow  it  to  decide  would  be  to  put  the  Constitution  at  its 
mercy.  The  President  cannot,  because  he  is  not  a  lawyer,  and 
he  also  may  be  personally  interested.  There  remain  only  the 
courts,  and  these  must  he  the  National  or  Federal  courts, 
because  no  other  courts  can  be  relied  on  in  such  cases.  So  far 
again  there  is  no  mystery  about  the  matter. 

Now,  however,  we  arrive  at  a  feature  which  complicates  the 
facts,  though  it  introduces  no  new  principle.  The  United 
States  is  a  federation  of  commonwealths,  each  of  which  has  its 
own  constitution  and  laws.  The  Federal  Constitution  not 
only  gives  certain  powers  to  Congress,  as  the  national  legis- 
lature, but  recognizes  certain  powers  in  the  States,  in  virtue 
whereof  their  respective  peoples  have  enacted  fundamental 
State  laws  (the  State  constitutions)  and  have  enabled  their 
respective  legislatures  to  pass  State  statutes.  However,  as 
the  nation  takes  precedence  of  the  States,  the  Federal  Consti- 
tution, which  is  the  supreme  law  of  the  land  everywhere,  and 
the  statutes  duly  made  by  Congress  under  it,  are  preferred  to 
all  State  constitutions  and  statutes ;  and  if  any  conflict  arise 
between  them,  the  latter  must  give  way.  The  same  phenom- 
enon therefore  occurs  as  in  the  case  of  an  inconsistency  be- 
tween the  Constitution  and  a  congressional  statute.  Where  it 
is  shown  that  a  State  constitution  or  statute  infringes  either 
the  Federal  Constitution  or  a  Federal  {i.e.  congressional) 
statute,  the  State  constitution  or  statute  must  be  declared 
invalid.  And  this  declaration  must,  of  course,  proceed  from 
the  courts,  nor  solely  from  the  Federal  courts  ;  because  when 
a  State  court  decides  against  its  own  statutes  or  constitution 
in  favour  of  a  Federal  law,  its  decision  is  linal. 

It  will  be  observed  that  in  all  this  there  is  no  conflict 
between  the  law  courts  and  any  legislative  body.  The  conflict 
is  between  different  kinds  of  laws.  The  duty  of  the  judges  is 
as  strictly  confined  to  the  interpretation  of  the  laws  cited  to 
them  as  it  is  in  England  or  France ;  and  the  only  difference 
is  that  in  America  there  are  laws  of  four  different  degrees 
of  authoritv,  Avhereas  in  England  all  la\\s    (excluding   mere 


248  THE   NATIONAL   GOVERNMENT 


bye-laws,  Privy  Council  ordinances,  etc.)  are  equal  because  all 
proceed  from  Parliament.     These  four  kinds  of  American  laws 

are :  — 

I.   The  Federal  Constitution. 

II.    Federal  statutes. 

III.  State  constitutions. 

IV.  State  statutes.^ 

The  American  law  court  therefore  does  not  itself  enter  on 
any  conflict  with  the  legislature.  It  merely  secures  to  each 
kind  of  law  its  due  authority.  It  does  not  even  preside  over 
a  conflict  and  decide  it,  for  the  relative  strength  of  each  kind 
of  law  has  been  settled  already.  All  the  court  does  is  to 
declare  that  a  conflict  exists  between  two  laws  of  different 
degrees  of  authority.  Then  the  question  is  at  an  end,  for  the 
weaker  law  is  extinct,  or,  to  put  the  point  more  exactly,  a  flaw 
has  been  indicated  which  makes  the  world  see  that  if  the  view 
of  the  court  be  correct,  the  law  is  in  fact  null.  The  court 
decides  nothing  but  the  case  before  it :  and  any  one  may,  if  he 
thinks  the  court  wrong,  bring  up  a  fresh  case  raising  again  the 
question  whether  the  law  is  valid.^ 

This  is  the  abstract  statement  of  the  matter ;  but  there  is 
also  an  historical  one.  Many  of  the  American  colonies  received 
charters  from  the  British  Crown,  which  created  or  recognized 
colonial  assemblies,  and  endowed  these  with  certain  powers 
of  making  laws  for  the  colony.  Such  powers  were  of  course 
limited,  partly  by  the  charter,  partly  by  usage,  and  were  sub- 
ject to  the  superior  authority  of  the  Crown  or  of  the  Brit- 
ish Parliament.  Questions  sometimes  arose  in  colonial  days 
whether  the  statutes  made  by  these  assemblies  were  in  excess 
of  tlie  powers  conferred  by  the  charter ;  and  if  the  statutes 
were  found  to  be  in  excess,  they  were  held  invalid  by  the 

1  Of  these,  the  Federal  Constitution  prevails  against  all  other  laws.  Federal 
statutes,  if  made  iu  pursuance  of  and  conformably  to  the  Constitution,  prevail 
against  III.  and  IV.  If  in  excess  of  the  powers  granted  by  the  Constitution, 
they  are  to  that  extent  invalid.  A  State  constitution  yields  to  I.  and  II.,  but 
prevails  against  the  statutes  of  the  State. 

-  This  happened  in  tlie  Legal  Tender  question  (see  next  chapter).  But  in 
ninety-nine  instances  out  of  a  hundred,  the  legal  profession  and  the  public 
admit  the  correctness,  and  therewith  the  authority,  of  the  view  which  the 
court  has  taken.  The  court  has  itself  declared  that  its  declaration  of  the 
unconstitutionality  of  a  statute  must  nowise  be  taken  as  amounting  to  a  repeal 
of  that  statute.    See  In  re  Rahrer,  140  U.  S.  Rep.  p.  545. 


CHAP,  xxiii    THE  COURTS  AND  THE   CONSTITUTION  249 

courts,  that  is  to  say,  in  the  first  instance,  by  the  colonial 
courts,  or,  if  the  matter  was  carried  to  England,  by  the  Privy 
Council.^ 

When  the  thirteen  American  colonies  asserted  their  indepen- 
dence in  1776,  they  replaced  these  old  charters  by  new  consti- 
tutions,^ and  by  these  constitutions  entrusted  their  respective 
legislative  assemblies  with  certain  specified  and  limited  legis- 
lative powers.  The  same  question  was  then  liable  to  recur  with 
regard  to  a  statute  passed  by  one  of  these  assemblies.  If  such  a 
statute  was  in  excess  of  the  power  which  the  State  constitu- 
tion conferred  on  the  State  legislature,  or  in  any  way  trans- 
gressed the  provisions  of  that  constitution,  it  was  invalid,  and 
acts  done  under  it  were  void.  The  question,  like  any  other 
question  of  law,  came  for  decision  before  the  courts  of  the 
State.  Thus,  in  1786,  the  supreme  court  of  Ehode  Island  held 
that  a  statute  of  the  legislature  which  purported  to  make  a 
penalty  collectible  on  summary  conviction,  witliout  trial  by 
jury,  gave  the  court  no  jurisdiction,  i.e.  was  invalid,  the  colo- 
nial charter,  which  was  then  still  in  force  as  the  ponstitution 
of  the  State,  having  secured  the  right  of  trial  by  jury  in  all 
cases.^  When  the  Constitution  of  the  United  States  came  into 
operation  in  1789,  and  was  declared  to  be  paramount  to  all 
State  constitutions  and  State  statutes,  no  new  principle  was 
introduced;  there  was  merely  a  new  application,  as  between 
the  nation  and  the  States,  of  the  old  doctrine  that  a  subordi- 
nate and  limited  legislature  cannot  pass  beyond  the  limits  fixed 
for  it.  It  was  clear,  on  general  principles,  that  a  State  law 
incompatible  with  a  duly  enacted  Federal  law  must  give  way ; 
the  only  question  was  :  What  courts  are  to  pronounce  upon  the 

1  The  same  thing  happens  even  now  as  regards  the  British  colonies.  The 
question  was  lately  argued  before  the  Privy  Council  whether  the  legislature  of 
the  Dominion  of  Canada,  created  by  the  British  North  America  Act  of  1867 
(an  imperial  statute),  had  power  to  extinguish  the  right  of  appeal  from  the 
supreme  court  of  Canada  to  the  British  Queen  in  council. 

2  Connecticut  and  Rhode  Island,  however,  went  on  under  the  old  charters, 
with  which  they  were  well  content.  See  as  to  this  whole  subject.  Chapter 
XXXVII.,  on  State  Constitutions. 

3  In  the  case  of  Trevett  v.  Weeden,  the  first  case  of  importance  in  which  a 
legislative  act  was  held  unconstitutional  for  incompatibility  with  a  State  con- 
stitution, although  the  doctrine  seems  to  have  been  laid  down  by  the  supreme 
court  of  New  Jersey  in  Holmes  v.  Walton  (1780),  as  well  as  in  Virginia  in 
1782,  and  in  New  York  in  1784.  See  Judge  Elliott's  article  in  Political  Science 
Quarterly  for  June  1890,  p.  233. 


250  THE   NATIONAL   GOVERNMENT 


question  whether  such  incompatibility  exists?  Who  is  to 
decide  whether  or  no  the  authority  given  to  Congress  has  been 
exceeded,  and  whether  or  no  the  State  law  contravenes  the 
Federal  Constitution  or  a  Federal  statute  ? 

In  1787  the  only  pre-existing  courts  were  the  State  courts. 
If  a  case  coming  before  them  raised  the  point  whether  a  State 
constitution  or  statute  was  inconsistent  with  the  Federal  Con- 
stitution or  a  statute  of  Congress,  it  was  their  duty  to  decide 
it,  like  any  other  point  of  law.  But  their  decision  could  not 
safely  be  accepted  as  final,  because,  being  themselves  the  off- 
spring of,  and  amenable  to  the  State  governments,  they  would 
naturally  tend  to  uphold  State  laws  against  the  Federal  Consti- 
tution or  statutes.  Hence  it  became  necessary  to  call  in  courts 
created  by  the  central  Federal  authority  and  co-extensive  with 
it  —  that  is  to  say,  those  Federal  courts  which  have  been 
already  described.  The  matter  seems  complicated,  because 
we  have  to  consider  not  only  the  superiority  of  the  Federal 
Constitution  to  the  Federal  legislature  but  also  the  superiority 
of  both  th^  Federal  Constitution  and  Federal  statutes  to  all 
State  laws.  But  the  principle  is  the  same  and  equally  simple 
in  both  sets  of  cases.  Both  are  merely  instances  of  the  doc- 
trine, that  a  law-making  body  must  not  exceed  its  powers,  and 
that  when  it  has  attempted  to  exceed  its  powers,  its  so-called 
statutes  are  not  laws  at  all,  and  cannot  be  enforced. 

In  America  the  supreme  law-making  power  resides  in  the 
people.  Whatever  they  enact  is  universally  binding.  All 
other  law-making  bodies  are  subordinate,  and  the  enactments 
of  such  bodies  must  conform  to  the  supreme  law,  else  the}'' 
will  perish  at  its  touch,  as  a  fishing  smack  goes  down  before 
an  ocean  steamer.  And  these  subordinate  enactments,  if  at 
variance  with  the  supreme  law,  are  invalid  from  the  first, 
although  their  invalidity  may  remain  for  years  unnoticed  or 
unproved.  It  can  be  proved  only  by  the  decision  of  a  court  in 
a  case  which  raises  the  point  for  determination.  The  phe- 
nomenon cannot  arise  in  a  country  whose  legislature  is  omnip- 
otent, but   naturally^  arises  wherever  we  find  a  legislature 

1 1  do  not  say  "  necessarily, "  because  there  are  countries  on  the  European 
continent  where,  although  there  exists  a  constitution  superior  to  the  legislature, 
tlie  courts  are  not  allowed  to  hold  a  legislative  act  invalid,  because  the  legis- 
lature is  deemed  to  have  the  right  of  taking  its  own  view  of  the  constitution. 
This  seems  to  ho  the  case  both  in  France  aud  iu  Switzerland.     So  in  the  Ger- 


CHAP.  XXIII     THE  COURTS  AND  THE  CONSTITUTION  251 

limited  by  a  superior  authority,  such  as  a  constitution  which 
the  legislature  cannot  alter. 

In  England  tlie  judges  interpret  Acts  of  Parliament  exactly 
as  American  judges  interpret  statutes  coming  before  them.  If 
they  find  an  Act  conflicting  with  a  decided  case,  they  prefer 
the  Act  to  the  case,  as  being  of  higher  authority.  As  between 
two  conflicting  Acts,  they  prefer  the  latter,  because  it  is  the 
last  expression  of  the  mind  of  Parliament.  If  they  misinter- 
pret the  mind  of  Parliament,  i.e.  if  they  construe  an  Act  in  a 
sense  which  Parliament  did  not  really  intend,  their  decision  is 
nevertheless  valid,  and  will  usually  be  followed  by  other  courts 
of  the  same  rank  until  Parliament  speaks  its  mind  again  by 
another  Act.  The  only  difference  between  their  position  and 
that  of  their  American  brethren  is  that  they  have  never  to 
distinguish  between  the  authority  of  one  enactment  and  of 
another,  otherwise  than  by  looking  to  the  date,  and  that  they 
have  therefore  never  to  inquire  whether  an  Act  of  Parliament 
was  invalid  when  first  passed.  Invalid  it  could  not  have  been, 
because  Parliament  is  omnipotent,  and  Parliament  is  omnipo- 
tent because  Parliament  is  deemed  to  be  the  people.  Parlia- 
ment is  not  a  body  with  delegated  or  limited  authority.  The 
whole  fulness  of  popular  power  dwells  in  it.  The  whole 
nation  is  supposed  to  be  present  within  its  walls. ^  Its  will  is 
law ;  or,  as  Dante  says  in  a  famous  line,  "  its  will  is  power." 

There  is  a  story  told  of  an  intelligent  Englishman  who,  having 
heard  that  the  Supreme  Federal  Court  was  created  to  protect 
the  Constitution,  and  had  authority  given  it  to  annul  bad  laws, 
spent  two  days  in  hunting  up  and  down  the  Federal  Constitu- 
tion for  the  provisions  he  had  been  told  to  admire.     Xo  won- 

man  Empire  the  Reicbskammergericht  cannot  question  an  act  of  the  imperial 
legislature ;  and  in  Belgium,  though  it  has  been  thought  that  the  courts 
possess  such  a  power,  there  seems  to  be  no  instance  of  its  exercise. 

1  The  old  writers  say  that  the  reason  why  an  Act  of  Parliament  requires  no 
public  notification  in  the  country  is  because  it  is  deemed  to  be  made  by  the 
whole  nation,  so  that  every  person  is  present  at  the  making  of  it.  It  is  cer- 
tainly true  that  the  orthodox  legal  view  of  Parliament  never  regards  it  as 
exercising  powers  that  can  in  any  sense  be  called  delegated.  A  remarkable 
example  of  the  power  which  Parliament  can  exert  as  an  ultimately  and  com- 
pletely sovereign  body  is  afforded  by  the  Septennial  Act  (1  Geo.  I.  st.  2,  cap. 
38).  By  this  statute  a  Parliament  in  which  the  House  of  Commons  had  been 
elected  for  three  years  only,  under  the  Triennial  Act  then  in  force,  prolonged 
not  only  the  possible  duration  of  future  Parliaments  but  its  own  term  to  seven 
years,  taliing  to  itself  four  years  of  power  whicli  the  electors  had  not  given  it. 


252  THE   NATIONAL   GOVERNMENT 


der  he  did  not  find  them,  for  there  is  not  a  word  in  the 
Constitution  on  the  subject.  The  powers  of  the  Federal 
courts  are  the  same  as  those  of  all  other  courts  in  civilized 
countries,  or  ratlier  they  differ  from  those  of  other  courts  by 
defect  and  not  by  excess,  being  limited  to  certain  classes  of 
cases.  The  so-called  ''power  of  annulling  an  unconstitu- 
tional statute  "  is  a  duty  rather  than  a  power,  and  a  duty 
incumbent  on  the  humblest  State  court  when  a  case  raising 
the  point  comes  before  it  no  less  than  on  the  Supreme  Federal 
Court  at  Washington.  When  therefore  people  talk,  as  they 
sometimes  do,  even  in  the  United  States,  of  the  Supreme 
court  as  "the  guardian  of  the  Constitution,"  they  mean  noth- 
ing more  than  that  it  is  the  final  court  of  appeal,  before  which 
suits  involving  constitutional  questions  may  be  brought  up  by 
the  parties  for  decision.  In  so  far  the  phrase  is  legitimate. 
But  the  functions  of  the  Supreme  court  are  the  same  in  kind 
as  those  of  all  other  courts.  State  as  well  as  Federal.  Its  duty 
and  theirs  is  simply  to  declare  and  apply  the  law ;  and  where 
any  court,  be  it  a  State  court  of  first  instance,  or  the  Federal 
court  of  last  instance,  finds  a  law  of  lower  authority  clashing 
with  a  law  of  higher  authority,  it  must  reject  the  former,  as 
being  really  no  law,  and  enforce  the  latter. 

It  is  therefore  no  mere  technicality  to  point  out  that  the 
American  judges  do  not,  as  Europeans  are  apt  to  say,  "  control 
the  legislature,"  but  simply  interpret  the  law.  The  word 
"  control "  is  misleading,  because  it  implies  that  the  person  or 
bod}'  of  whom  it  is  used  possesses  and  exerts  discretionary  per- 
sonal Will.  Xow  the  American  judges  have  no  will  in  the 
matter  any  more  than  has  an  English  court  when  it  interprets 
an  Act  of  Parliament.  The  will  that  prevails  is  the  will  of 
the  people,  expressed  in  the  Constitution  which  they  had  en- 
acted. AU  that  the  judges  have  to  do  is  to  discover  from  the 
enactments  before  them  what  the  will  of  the  people  is,  and 
apply  that  will  to  the  facts  of  a  given  case.  The  more  general 
or  ambiguous  the  language  which  the  people  have  used,  so 
much  the  more  difficult  is  the  task  of  interpretation,  so  much 
greater  the  need  for  ability  and  integrity  in  the  judges.  But 
the  task  is  always  the  same  in  its  nature.  The  judges  have 
no  concern  with  the  motives  or  the  results  of  an  enactment, 
otherwise  than  as  these  may  throw  light  on  the  sense  in  which 


CHAP.  XXIII     THE  COURTS  AND  THE  CONSTITUTION  253 


the  enacting  authority  intended  it.  It  would  be  a  breach  of 
duty  for  them  to  express,  I  might  almost  say  a  breach  of  duty 
to  entertain,  an  opinion  on  its  policy  except  so  far  as  its  policy 
explains  its  meaning.  They  may  think  a  statute  excellent  in 
purpose  and  working,  but  if  they  cannot  find  in  the  Constitu- 
tion a  power  for  Congress  to  pass  it,  they  must  brush  it  aside 
as  invalid.  They  may  deem  another  statute  pernicious,  but  if 
it  is  within  the  powers  of  Congress,  they  must  enforce  it.  To 
construe  the  law,  that  is,  to  elucidate  the  will  of  the  people  as 
supreme  lawgiver,  is  the  beginning  and  end  of  their  duty. 
And  if  it  be  suggested  that  they  may  overstep  their  duty, 
and  may,  seeking  to  make  themselves  not  the  exponents  but 
the  masters  of  the  Constitution,  twist  and  pervert  it  to  suit 
their  own  political  views,  the  answer  is  that  such  an  exercise 
of  judicial  will  would  rouse  the  distrust  and  displeasure  of  the 
nation,  and  might,  if  persisted  in,  provoke  resistance  to  the  law 
as  laid  down  by  the  court,  possibly  an  onslaught  upon  the 
court  itself. 

To  insist  upon  the  fact  that  the  judiciary  of  the  United  States 
are  not  the  masters  of  the  Constitution  but  merely  its  inter- 
preters is  not  to  minimize  the  importance  of  their  functions,  but 
to  indicate  their  true  nature.  The  importance  of  those  func- 
tions can  hardly  be  exaggerated.  It  arises  from  two  facts. 
One  is  that  as  the  Constitution  cannot  easily  be  changed,  a 
bad  decision  on  its  meaning,  i.e.  a  decision  which  the  general 
opinion  of  the  profession  condemns,  may  go  uncorrected.  In 
England,  if  a  court  has  construed  a  statute  in  a  way  unintended 
or  unexpected.  Parliament  sets  things  right  next  session  by 
amending  the  statute,  and  so  prevents  future  decisions  to  the 
same  effect.  But  American  history  shows  only  one  instance  in 
which  an  unwelcome  decision  on  the  meaning  of  the  Constitu- 
tion has  been  thus  dealt  with,  viz.  the  decision,  that  a  State 
could  be  sued  by  a  private  citizen,^  which  led  to  the  eleventh 
amendment,  whereby  it  was  declared  that  the  Constitution 
should  not  cover  a  case  which  the  court  had  held  it  did  cover. 

The  other  fact  which  makes  the  function  of  an  American 
judge  so  momentous  is  the  brevity,  the  laudable  brevity,  of  the 

1  See  the  last  preceding  chapter.  The  doctrine  of  the  Dred  Scott  case  (of 
which  more  anon)  Mas  set  aside  by  the  fourteenth  amendment,  but  that  amend- 
ment was  intended  to  effect  much  more  than  merely  to  correct  the  court. 


25-1  THE   NATIONAL   GOVERNMENT 


Constitution.  The  words  of  that  instrument  are  general,  lay- 
in"-  down  a  few  large  principles.  The  cases  which  will  arise 
as  to  the  construction  of  these  general  words  cannot  be  foreseen 
till  they  arise.  When  they  do  arise  the  generality  of  the  words 
leaves  open  to  the  interpreting  judges  a  far  wider  field  than  is 
afforded  by  ordinary  statutes  which,  since  they  treat  of  one 
particular  subject,  contain  enactments  comparatively  minute 
and  precise.  Hence,  although  the  duty  of  a  court  is  only  to 
interpret,  the  considerations  affecting  interpretation  are  more 
numerous  than  in  the  case  of  ordinary  statutes,  more  delicate, 
larger  in  their  reach  and  scope.  They  sometimes  need  the 
exercise  not  merely  of  legal  acumen  and  judicial  fairness,  but 
of  a  comprehension  of  the  nature  and  methods  of  government 
which  one  does  not  demand  from  the  European  judge  who  walks 
in  the  narrow  path  traced  for  him  by  ordinary  statutes.  It  is 
therefore  hardly  an  exaggeration  to  say  that  the  American 
Constitution  as  it  now  stands,  with  the  mass  of  fringing  deci- 
sions which  explain  it,  is  a  far  more  complete  and  finished  in- 
strument than  it  was  when  it  came  fire-new  from  the  hands  of 
the  Convention.  It  is  not  merely  their  work  but  the  work  of 
the  judges,  and  most  of  all  of  one  man,  the  great  Chief-Justice 
Marshall. 

The  march  of  democracy  in  England  has  disposed  English 
writers  and  politicians  of  the  very  school  which  thirty  or 
twenty  years  ago  pointed  to  America  as  a  terrible  example, 
now  to  discover  that  her  republic  possesses  elements  of  stability 
wanting  in  the  monarchy  of  the  mother  country.  They  lament 
that  England  should  have  no  supreme  court.  Some  have  even 
suggested  that  England  should  create  one.  They  do  not  seem 
to  perceive  that  the  dangers  they  discern  arise  not  from  the 
want  of  a  court  but  from  the  omnipotence  of  the  British 
Parliament.  They  ask  for  a  court  to  guard  the  British  Con- 
stitution, forgetting  that  Britain  has  no  constitution,  in  the 
American  sense,  and  never  had  one,  except  for  a  short  space 
under  Oliver  Cromwell.  The  strongest  court  that  might  be 
set  up  in  England  could  effect  nothing  so  long  as  Parliament 
retains  its  power  to  change  every  part  of  the  law,  including 
all  the  rules  and  doctrines  that  are  called  constitutional.  If 
Parliament  were  to  lose  that  power  there  would  be  no  need  to 
create  a  supreme  court,  because  the  existing  judges  of  the  land 


CHAP.  XXIII     THE  COURTS  AND  THE   CONSTITUTION  255 

woiild  necessarily  discharge  the  very  functions  which  Ameri- 
can judges  now  discharge.  If  Parliament  were  to  be  split  up 
into  four  parliaments  for  England,  Scotland,  Ireland,  and 
Wales,  and  a  new  Federal  Assembly  were  to  be  established 
with  limited  legislative  powers,  powers  defined  by  an  instru- 
ment which  neither  the  Federal  Assembly  nor  any  of  the  four 
parliaments  could  alter,  questions  would  forthwith  arise  as  to 
the  compatibility  both  of  acts  passed  by  the  Assembly  with 
the  provisions  of  the  instrument,  and  of  acts  passed  by  any 
of  the  four  parliaments  with  those  passed  by  the  Assembly. 
These  questions  would  come  before  the  courts  and  be  deter- 
mined by  them  like  any  other  question  of  law.  The  same 
thing  woidd  happen  if  Britain  were  to  enter  into  a  federal 
pact  with  her  colonies,  creating  an  imperial  Council,  and 
giving  it  powers  which,  though  restricted  by  the  pact  to 
certain  purposes,  transcended  those  of  the  British  Parliament. 
The  interpretation  of  the  pact  would  belong  to  the  courts,  and 
both  Parliament  and  the  supposed  Council  would  be  bound  by 
that  interpretation.^  If  a  new  supreme  court  were  created  by 
Britain,  it  would  be  created  not  because  there  do  not  already 
exist  courts  capable  of  entertaining  all  the  questions  that 
could  arise,  but  because  the  parties  to  the  new  constitution 
enacted  for  the  United  Kingdom,  or  the  British  Empire  (as 
the  case  might  be),  might  insist  that  a  tribunal  composed  of 
persons  chosen  by  some  Federal  authority  would  be  more 
certainly  impartial.  The  preliminary  therefore  to  any  such 
"judicial  safeguard"  as  has  been  suggested  is  the  extinction 
of  the  present  British  Parliament  and  the  erection  of  a  wholly 
different  body  or  bodies  in  its  room. 

These  observations  may  suffice  to  show  that  there  is  nothing 
strange  or  mysterious  about  the  relation  of  the  Federal  courts 
to  the  Constitution.  The  plan  which  the  Convention  of  1787 
adopted  is  simple,  useful,  and  conformable  to  general  legal 
principles.  It  is,  in  the  original  sense  of  the  word,  an  elegant 
plan.  But  it  is  not  novel,  as  was  indeed  observed  by  Hamilton 
in  the  Federalist.  It  was  at  work  in  the  States  before  the 
Convention  of  1787  met.  It  was  at  work  in  the  thirteen 
colonies  before  they  revolted  from  England.     It  is  an  applica- 

1  Assuming  of  course  that  the  power  of  altering  the  pact  was  reserved  to 
some  authority  superior  to  either  the  Council  or  Parliament. 


256  'I'HE   NATIONAL   GOVPniNMENT 


tion  of  old  and  familiar  legal  doctrines.  Such  novelty  as  there 
is  belongs  to  the  scheme  of  a  Supreme  or  Rigid  constitution, 
reserving  the  ultimate  power  to  the  people,  and  limiting  in 
the  same  measure  the  power  of  a  legislature.^ 

It  is  nevertheless  true  that  there  is  no  part  of  the  American 
system  which  reflects  more  credit  on  its  authors  or  has  worked 
better  in  practice.  It  has  had  the  advantage  of  relegating 
questions  not  only  intricate  and  delicate,  but  peculiarly  liable 
to  excite  political  passions,  to  the  cool,  dry  atmosphere  of 
judicial  determination.  The  relations  of  the  central  Federal 
power  to  the  States,  and  the  amount  of  authority  which  Con- 
gress and  the  President  are  respectively  entitled  to  exercise, 
have  been  the  most  permanently  grave  questions  in  American 
history,  with  which  nearly  every  other  political  problem  has 
become  entangled.  If  they  had  been  left  to  be  settled  by 
Congress,  itself  an  interested  party,  or  by  any  dealings  between 
Congress  and  the  State  legislatures,  the  dangers  of  a  conflict 
would  have  been  extreme,  and  instead  of  one  civil  war  there 
might  have  been  several.  But  the  universal  respect  felt  for 
the  Constitution,  a  respect  which  grows  the  longer  it  stands, 
has  disposed  men  to  defer  to  any  decision  which  seems  honestly 
and  logically  to  unfold  the  meaning  of  its  terms.  In  obeying 
such  a  decision  they  are  obeying,  not  the  judges,  but  the  people 
who  enacted  the  Constitution.  To  have  foreseen  that  the  power 
of  interpreting  the  Federal  Constitution  and  statutes,  and  of 
determining  whether  or  no  State  constitutions  and  statutes 
transgress  Federal  provisions,  would  be  sufficient  to  prevent 
struggles  between  the  National  government  and  the  State  gov- 
ernments, required  great  insight  and  great  faith  in  the  sound- 
ness and  power  of  a  principle.     While  the  Constitution  was 

1  So  Mr.  Wilson  observed  (speaking  of  tlie  State  constitutions)  in  the  Penn- 
sylvania Convention  of  1788:  "  Perhaps  some  politician  who  has  not  considered 
with  sufficient  accuracy  our  political  systems  would  observe  that  in  our  gov- 
ernments the  supreme  power  was  vested  iu  the  constitutions.  This  opinion 
approaches  the  truth,  but  does  not  reach  it.  The  truth  is  that  in  our  govern- 
ments the  supreme,  absolute,  and  uncontrollable  power  remains  in  the  people. 
As  our  constitutions  are  superior  to  our  legislatures,  so  the  people  are  superior 
to  our  constitutions."  — Elliot's  Debates,  ii.  432. 

Mr.  M'Kean,  speaking  in  the  same  convention,  quoted  Locke's  Civil  Gor- 
ernment  (c.  2,  §  140,  and  c.  13,  §  152)  as  an  authority  for  the  proposition  that 
the  powers  of  Congress  could  be  no  greater  than  the  positive  grant  might 
convey. 

As  to  Rigid  Constitutions,  see  Chapter  XXXI.  post. 


CHAP.  XXIII     THE   COURTS  AND  THE  CONSTITUTION  257 

being  framed  the  suggestion  was  made,  and  for  a  time  seemed 
likely  to  be  adopted,  that  a  veto  on  the  acts  of  State  legislatures 
should  be  conferred  upon  the  Federal  Congress.  Discussion 
revealed  the  objections  to  such  a  plan.  Its  introduction  would 
have  offended  the  sentiment  of  the  States,  always  jealous  of 
their  autonomy ;  its  exercise  would  have  provoked  collisions 
with  them.  The  disallowance  of  a  State  statute,  even  if  it  did 
really  offend  against  the  Federal  Constitution,  would  have 
seemed  a  political  move,  to  be  resented  by  a  political  counter- 
move.  And  the  veto  would  often  have  been  pronounced  before 
it  could  have  been  ascertained  exactly  how  the  State  statute 
would  work,  sometimes,  perhaps,  pronounced  in  cases  where 
the  statute  was  neither  pernicious  in  itself  nor  opposed  to  the 
Federal  Constitution.  But  by  the  action  of  the  courts  the  self- 
love  of  the  States  is  not  wounded,  and  the  decision  annulling 
their  laws  is  nothing  but  a  tribute  to  the  superior  authority  of 
that  supreme  enactment  to  which  they  were  themselves  parties, 
and  Avhicli  they  may  themselves  desire  to  see  enforced  against 
another  State  on  some  not  remote  occasion.  However,  the 
idea  of  a  veto  by  Congress  was  most  effectively  demolished  in 
the  Convention  by  Roger  Sherman,  who  acutely  remarked  that 
a  veto  would  seem  to  recognize  as  valid  the  State  statute  ob- 
jected to,  whereas  if  inconsistent  with  the  Constitution  it  was 
really  invalid  already  and  needed  no  veto. 

By  leaving  constitutional  questions  to  be  settled  by  the 
courts  of  law  another  advantage  was  incidentally  secured. 
The  court  does  not  go  to  meet  the  question ;  it  waits  for  the 
question  to  come  to  it.  When  the  court  acts  it  acts  at  the 
instance  of  a  party.  Sometimes  the  plaintiff  or  the  defendant 
may  be  the  National  government  or  a  State  government,  but 
far  more  frequently  both  are  private  persons,  seeking  to  en- 
force or  defend  their  private  rights.  For  instance,  in  the 
famous  case^  which  established  the  doctrine  that  a  statute 
passed  by  a  State  repealing  a  grant  of  land  to  an  individual 
made  on  certain  terms  by  a  previous  statute  is  a  law  "  impair- 
ing the  obligation  of  a  contract,"  and  therefore  invalid,  under 
Art.  i.  §  10  of  the  Federal  Constitution;  the  question  came 
before  the  court  on  an  action  by  one  Fletcher  against  one  Peck 
on  a  covenant  contained  in  a  deed  made  by  the  latter ;  and  to 

1  Fletcher  v.  Peel',  6  Cranch,  p.  87. 
VOL.  I  S 


258  THE   NATIONAL   GOVERNMENT 


do  justice  between  plaintiff  and  defendant  it  was  necessary  to 
examine  the  validity  of  a  statute  passed  by  tlie  legislature  of 
Georgia.  This  method  has  the  merit  of  not  hurrying  a  ques- 
tion on,  but  leaving  it  to  arise  of  itself.  Full  legal  argument 
on  both  sides  is  secured  by  the  private  interests  which  the 
parties  have  in  setting  forth  their  contentions ;  and  the  deci- 
sion when  pronounced,  since  it  appears  to  be,  as  in  fact  it  is, 
primarily  a  decision  upon  private  rights,  obtains  that  respect 
and  moral  support  which  a  private  plaintiff  or  defendant  estab- 
lishing his  legal  right  is  entitled  to  from  law-abiding  citizens. 
A  State  might  be  provoked  to  resistance  if  it  saw,  as  soon  as 
it  had  passed  a  statute,  the  Federal  government  inviting  the 
Supreme  court  to  declare  that  statute  invalid.  But  when  the 
Federal  authority  stands  silent,  and  a  year  after  in  an  ordinary 
action  between  Smith  and  Jones  the  court  decides  in  favour  of 
Jones,  Avho  argued  that  the  statute  on  which  the  plaintiff  relied 
was  invalid  because  it  transgressed  some  provision  of  the  Con- 
stitution, everybody  feels  that  Jones  was  justified  in  so  argu- 
ing, and  that  since  judgment  was  given  in  his  favour  he  must 
be  allowed  to  retain  the  money  which  the  court  has  found  to 
be  his,  and  the  statute  which  violated  his  private  right  must 
fall  to  the  ground. 

This  feature  has  particularly  excited  the  admiration  of 
Continental  critics.  To  an  Englishman  it  seems  perfectly 
natural,  because  it  is  exactly  in  this  way  that  much  of  English 
constitutional  law  has  been  built  up.  The  English  courts  had 
indeed  no  rigid  documentary  constitution  by  which  to  test  the 
ordinances  or  the  executive  acts  of  the  Crown,  and  their  deci- 
sions on  constitutional  points  have  often  been  pronounced  in 
proceedings  to  which  the  Crown  or  its  ministers  were  parties. 
But  they  have  repeatedly  established  principles  of  the  greatest 
moment  by  judgments  delivered  in  cases  where  a  private 
interest  was  involved,  grounding  themselves  either  on  a  statute 
which  they  interpreted  or  on  some  earlier  decision.'  Lord 
Mansfield's  famous  declaration  that  slavery  was  legally  impos- 
sible in  England  was  pronounced  in  such  a  private  case.  Stock- 
dale  V.  Hansard,  in  which  the  law  regarding  the  publishing  of 

1  The  independence  of  the  English  judges  (since  the  Revolution)  and  of  the 
American  Federal  j  udges  has  of  course  largely  contributed  to  make  them  trusted, 
and  to  make  them  act  worthily  of  the  trust  reposed  in  them. 


CHAP.  XXIII     THE  COURTS  AND  THE   CONSTITUTION  259 

debates  in  Parliament  was  settled,  Avas  an  action  by  a  private 
person  againt  printers.  The  American  method  of  settling  con- 
stitutional questions,  like  all  other  legal  questions,  in  actions 
between  private  parties,  is  therefore  no  new  device,  but  a  part 
of  that  priceless  heritage  of  the  English  Common  Law  which 
the  colonists  carried  with  them  across  the  sea,  and  which  they 
have  preserved  and  developed  in  a  manner  worthy  of  its  own 
free  spirit  and  lofty  traditions. 

Those  err  who  suppose  that  the  functions  above  described  as 
pertaining  to  the  American  courts  are  peculiar  and  essential 
to  a  Federal  government.  These  functions  are  not  peculiar  to 
a  federation,  because  the  distinction  of  fundamental  laws  and 
inferior  laws  may  exist  equally  well  in  a  unified  government, 
did  exist  in  each  of  the  thirteen  colonies  up  till  1776,  did 
exist  in  each  of  the  thirteen  States  from  1776  till  1789,  does 
exist  in  every  one  of  the  forty-four  States  now.  Nor  are  they 
essential,  because  a  federation  may  well  be  imagined  in  which 
the  central  or  national  legislature  should  be  theoretically  sover- 
eign in  the  same  sense  and  to  the  same  full  extent  as  is  the 
British  Parliament.^  The  component  parts  of  any  confederacy 
will  no  doubt  be  generally  disposed  to  place  their  respective 
State  rights  under  the  protection  of  a  compact  unchangeable  by 
the  national  legislature.  But  they  need  not  do  so,  for  they  may 
rely  on  the  command  which  as  electors  they  have  over  that 
legislature,  and  may  prefer  the  greater  energy  which  a  sover- 
eign legislature  promises  to  the  greater  security  for  State  rights 
which  a  limited  legislature  implies.  In  the  particular  case  of 
America  it  is  abundantly  clear  that  if  there  had  been  in  1787 
no  States  jealous  of  their  powers,  but  an  united  nation  creating 
for  itself  an  improved  frame  of  government,  the  organs  of  that 
government  would  have  been  limited  by  a  fundamental  law  just 
as  they  have  in  fact  been,  because  the  nation,  distrusting  the 
agents  it  was  creating,  was  resolved  to  fetter  them  by  reserv- 
ing to  itself  the  ultimate  and  over-riding  sovereignty. 

The  case  of  Switzerland  shows  that  the  American  plan  is  not 
the  only  one  possible  to  a  federation.     The  Swiss  Federal  Court, 

1  It  would  appear  that  in  the  Ach?ean  League  the  Assemhly  (which  voted  by- 
cities)  was  sovereign,  and  could  by  its  vote  vary  the  terms  of  the  federal  ar- 
rangements between  the  cities  forming  the  federation ;  although  the  scantiness 
of  our  data  and  what  may  be  called  the  want  of  legal-mindedness  among  the 
Greeks  make  this  and  similar  questions  not  easy  of  determination. 


260  THE   NATIONAL   GOVERNMENT 


while  instituted  in  imitation  of  the  American,  is  not  the  only 
authority  competent  to  determine  whether  a  Cantonal  law  is 
void  because  inconsistent  with  the  Federal  Constitution,  for  in 
some  cases  recourse  must  be  had  not  to  the  Court  but  to  the 
Federal  Council,  which  is  a  sort  of  executive  cabinet  of  the  Con- 
federation. And  the  Federal  Court  is  bound  to  enforce  every 
law  passed  by  the  Federal  legislature,  even  if  it  violate  the 
Constitution.  In  other  words,  the  Swiss  Constitution  has 
reserved  some  points  of  Cantonal  law  for  an  authority  not 
judicial  but  political,  and  has  made  the  Federal  legislature  the 
sole  judge  of  its  own  powers,  the  authorized  interpreter  of  the 
Constitution,  and  an  interpreter  not  likely  to  proceed  on  purely 
legal  grounds.^  To  an  English  or  American  lawyer  the  Swiss 
copy  seems  neither  so  consistent  with  sound  theory  nor  so  safe 
in  practice  as  the  American  original.  But  the  statesmen  of 
Switzerland  felt  that  a  method  fit  for  America  might  be  ill- 
fitted  for  their  own  country,  where  the  latitude  given  to  the 
executive  is  greater ;  and  the  Swiss  habit  of  constantly  recur- 
ring to  popular  vote  makes  it  less  necessary  to  restrain  the 
legislature  by  a  permanently  enacted  instrument.  The  politi- 
cal traditions  of  the  European  continent  differ  widely  from 
those  of  England  and  America ;  and  the  Federal  Judicature  is 
not  the  only  Anglo-American  institution  which  might  fail  to 
thrive  anywhere  but  in  its  native  soil. 

1  See  upon  this  fascinating  subject,  the  provisions  of  the  Swiss  Federal  Con- 
stitution of  187-1,  arts.  102,  110,  and  114;  also  Dubs,  Das  oeffentUche  Recht  der 
Schiceizerischen  Eidgenossenscho/t,  and  a  valuable  pamphlet  by  M.  Ch.  Sol- 
dan,  entitled  Du  recoitrs  de  Droit  Public  au  Trihunol  Federal;  Bale,  1886. 
Dr.  Dubs  was  himself  the  author  of  the  plan  whereby  the  Federal  legislature 
is  made  the  arbiter  of  its  own  constitutional  powers. 


CHAPTER   XXIV 

THE  "WOKKIXG  OF  THE  COURTS 

Those  readers  who  have  folloAved  thus  far  the  account  given 
of  the  Federal  courts  have  probably  asked  themselves  how 
judicial  authorities  can  sustain  the  functions  which  America 
requires  them  to  discharge.  It  is  plain  that  judges,  when 
sucked  into  the  vortex  of  politics,  must  lose  dignity,  imparti- 
ality, and  influence.  But  how  can  judges  keep  out  of  politics, 
when  political  issues  raising  party  passions  come  before  them  ? 
Must  not  constitutional  questions,  questions  as  to  the  rights 
under  the  Constitution  of  the  Federal  government  against  the 
States,  and  of  the  branches  of  the  Federal  government  against 
one  another,  frequently  involve  momentous  political  issues  ? 
In  the  troublous  times  during  which  the  outlines  of  the  English 
Constitution  were  settled,  controversy  often  raged  round  the 
courts,  because  the  decision  of  contested  points  lay  in  their 
hands.  When  Charles  I.  could  not  induce  Parliament  to  admit 
the  right  of  levying  contributions  which  he  claimed,  and  Par- 
liament relied  on  the  power  of  the  purse  as  its  defence  against 
Charles  I.,  the  question  whether  ship-money  could  lawfully  be 
levied  was  vital  to  both  parties,  and  the  judges  held  the  balance 
of  power  in  their  hands.  At  that  moment  the  law  could  not 
be  changed,  because  the  Houses  and  the  king  stood  opposed : 
hence  everything  turned  on  the  interpretation  of  the  existing 
law.  In  America  the  Constitution  is  at  all  times  very  hard  to 
change :  much  more  then  must  political  issues  turn  on  its 
interpretation.  And  if  this  be  so,  must  not  the  interpreting 
court  be  led  to  assume  a  control  over  the  executive  and  legis- 
lative branches  of  the  government,  since  it  has  the  power  of 
declaring  their  acts  illegal  ? 

There  is  ground  for  these  criticisms.  The  evil  they  point  to 
has  occurred  and  may  recur.     But  it  occurs  very  rarely,  and 

261 


262  THE   NATIONAL   GOVERNMENT 


may  be  averted  by  the  same  prudence  wliicb  the  courts  have 
hitherto  generally  shown.  The  causes  which  have  enabled  the 
Federal  courts  to  avoid  it,  and  to  maintain  their  dignity  and 
influence  almost  unshaken,  are  the  following  :  — 

I.  The  Supreme  court  —  I  speak  of  the  Supreme  court 
because  its  conduct  has  governed  that  of  inferior  Federal  courts 
—  has  steadily  refused  to  interfere  in  j^urely  political  ques- 
tions. Whenever  it  finds  any  discretion  given  to  the  President, 
any  executive  duty  imposed  on  him,  it  considers  the  manner  in 
which  he  exercises  his  discretion  and  discharges  the  duty  to  be 
beyond  its  province.  Whenever  the  Constitution  has  conferred 
a  power  of  legislating  upon  Congress,  the  court  declines  to 
inquire  whether  the  use  of  the  power  was  in  the  case  of  a  par- 
ticular statute  passed  by  Congress  either  necessary  or  desir- 
able, or  whether  it  was  exerted  in  a  prudent  manner,  for  it 
holds  all  such  matters  to  be  within  the  exclusive  province  of 
Congress. 

"  In  measures  exclusively  of  a  political,  legislative,  or  executive  char- 
acter, it  is  plain  that  as  the  supreme  authority  as  to  these  questions 
belongs  to  the  legislative  and  executive  departments,  they  cannot  be  re- 
examined elsewhere.  Thus  Congress,  having  the  power  to  declare  war, 
to  levy  taxes,  to  appropriate  money,  to  regulate  intercourse  and  com- 
merce with  foreign  nations,  their  mode  of  executing  these  powers  can 
never  become  the  subject  of  re -examination  in  any  other  tribunal.  So 
the  power  to  make  treaties  being  confided  to  the  President  and  Senate, 
when  a  treaty  is  properly  ratified,  it  becomes  the  law  of  the  land,  and  no 
other  tribunal  can  gainsay  its  stipulations.  Yet  cases  may  readily  be 
imagined  in  which  a  tax  may  be  laid,  or  a  treaty  made  upon  motives  and 
grounds  wholly  beside  the  intention  of  the  Constitution.  The  remedy, 
however,  in  such  cases  is  solely  by  an  appeal  to  the  people  at  the  elec- 
tions, or  by  the  salutary  power  of  amendment  provided  by  the  Constitu- 
tion itself."  1 

Adherence  to  this  principle  has  enabled  the  court  to  avoid  an 
immixture  in  political  strife  which  must  have  destroyed  its 
credit,  has  deterred  it  from  entering  the  political  arena,  where 
it  Avould  have  been  weak,  and  enabled  it  to  act  without  fear  in 
the  sphere  of  piire  law,  where  it  is  strong.  Occasionally,  how- 
ever, as  I  shall  explain  presently,  the  court  has  come  into  col- 
lision with  the  executive.  Occasionally  it  has  been  required 
to  give  decisions  which  have  worked  with  tremendous  force  on 
1  Story,  Commentaries  on  the  Constittition,  §  374. 


CHAP.  XXIV  THE    WORKING   OF   THE   COURTS  263 


politics.  The  most  famous  of  tliese  was  tlie  Dred  Scott  case,^ 
in  which  the  Supreme  court,  on  an  action  by  a  negro  for  assault 
and  battery  against  the  person  claiming  to  be  his  master,  de- 
clared that  a  slave  taken  temporarily  to  a  free  State  and  to  a 
Territory  in  which  Congress  had  forbidden  slavery,  and  after- 
wards returning  into  a  slave  State  and  resuming  residence 
there,  was  not  a  citizen  capable  of  suing  in  the  Federal  courts 
if  by  the  law  of  the  slave  State  he  was  still  a  slave.  This  was 
the  point  which  actually  called  for  decision ;  but  the  majority 
of  the  court,  for  there  was  a  dissentient  minority,  went  further, 
and  delivered  a  variety  of  dicta  on  various  other  points  touch- 
ing the  legal  status  of  negroes  and  the  constitutional  view  of 
slavery.  This  judgment,  since  the  language  used  in  it  seemed 
to  cut  off  the  hope  of  a  settlement  by  the  authority  of  Congress 
of  the  then  (1857)  pending  disputes  over  slavery  and  its  exten- 
sion, did  much  to  precipitate  the  Civil  War. 

Some  questions,  and  among  them  many  which  involve  politi- 
cal issues,  can  never  come  before  the  Federal  courts,  because 
they  are  not  such  as  are  raisable  in  an  action  between  parties. 
Of  those  which  might  be  raised,  some  never  happen  to  arise, 
while  others  do  not  present  themselves  in  an  action  till  some 
time  after  the  statute  has  been  passed  or  act  done  on  which 
the  court  is  called  to  pronounce.  By  that  time  it  may  happen 
that  the  warmth  of  feeling  which  expressed  itself  during  de- 
bate in  Congress  or  in  the  country  has  passed  away,  while  the 
judgment  of  the  nation  at  large  has  been  practically  pro- 
nounced upon  the  issue. 

II.  Looking  upon  itself  as  a  pure  organ  of  the  law,  com- 
missioned to  do  justice  between  man  and  man,  but  to  do 
nothing  more,  the  Supreme  court  has  steadily  refused  to  decide 
abstract  questions,  or  to  give  opinions  in  advance  by  way  of 
advice  to  the  executive.  When,  in  1793,  President  Washing- 
ton requested  its  opinion  on  the  construction  of  the  treaty  of 
1778  with  France,  the  judges  declined  to  comply. 
■  This  restriction  of  the  court's  duty  to  the  determination  of 
concrete  cases  arising  in  suits  has  excited  so  much  admiration 

1  Scott  V.  Sandford,  19  How.  393.  There  is  au  immense  literature  about 
this  case,  the  legal  points  involved  in  which  are  too  numerous  and  technical  to 
he  here  stated.  It  is  noticeable  that  the  sting  of  the  decision  lay  rather  in  the 
obiter  dicta  than  in  the  determination  of  the  main  question  involved. 


264  THE   NATIONAL   GOYERXMENT 


I'l'oni  Tocqueville  and  other  writers,  that  the  corresponding 
disadvantages  must  be  stated.     They  are  these  :  — 

To  settle  at  once  and  for  ever  a  disputed  point  of  constitu- 
tional law  would  often  be  a  gain  both  to  private  citizens  and 
to  the  organs  of  the  government.  Under  the  present  system 
there  is  no  certainty  when,  if  ever,  such  a  point  will  be  settled. 
Nobody  may  care  to  incur  the  trouble  and  expense  of  taking 
it  before  the  court.  A  suit  which  raises  it  may  be  compro- 
mised or  dropped. 

When  such  a  question,  after  perhaps  the  lapse  of  years, 
comes  before  the  Supreme  court  and  is  determined,  the  deter- 
mination may  be  different  from  what  the  legal  profession  has 
expected,  may  alter  that  which  has  been  believed  to  be  the 
law,  may  shake  or  overthrow  private  interests  based  upon 
views  now  declared  to  be  erroneous.^  These  are,  no  doubt, 
drawbacks  incident  to  every  system  in  which  the  decisions  of 
courts  play  a  great  part.  There  are  many  points  in  the  law 
of  England  which  are  uncertain  even  now,  because  they  have 
never  come  before  a  court  of  high  authority,  or,  having  been 
decided  in  different  ways  by  co-ordinate  courts,  have  not  been 
carried  to  the  final  court  of  appeal.  But  in  England,  if  the 
inconvenience  is  great,  it  can  be  removed  by  an  Act  of  Parlia- 
ment, and  it  can  hardly  be  so  great  as  it  may  be  in  America, 
where,  since  the  doubtful  point  may  be  the  true  construction 
of  the  fundamental  law  of  the  Union,  the  President  and  Con- 
gress may  be  left  in  uncertainty  as  to  how  they  shall  shape 
their  course.  With  the  best  wish  in  the  world  to  act  con- 
formably to  the  Constitution,  tliese  authorities  have  no  means 
of  ascertaining  before  they  act  what,  in  the  view  of  its  author- 
ized interpreters,  the  true  meaning  of  the  Constitution  is. 
Moved  by  this  consideration,  seven  States  of  the  Union  have  by 
their  Constitutions  empowered  the  governor  or  legislature  to 
require  the  written  opinions  of  the  judges  of  the  highest  State 
court  on  points  submitted  to  them.^     But  the  President  of  the 

1  The  Dred  Scott  decision  in  1857  declared  the  Missonri  compromise,  carried 
oiit  by  Act  of  Congress  in  1820,  to  have  been  beyond  the  powers  of  Congress, 
which,  to  be  sure,  had  virtually  repealed  it  a  year  or  two  before  by  the  Kan- 
sas-Nebraska legislation.  Decisions  have  been  given  on  the  fourteenth  and 
fifteenth  amendments  upsetting  or  qualifjang  congressional  legislation  passed 
yeai'S  before. 

2  See  Chapter  XXXVII.  ^wst.    There  exists  a  similar  provision  in  the  stat- 


CHAP,  xxir  TilE    WOKKTXG   OF   THE   COURTS  265 

United  States  can  only  consult  his  attorney-general,^  and  the 
Houses  of  Congress  have  no  legal  adviser,  though  to  be  sure 
they  are  apt  to  receive  a  profusion  of  advice  from  their  own 
legal  members. 

III.  Other  causes  which  have  sustained  the  authority  of 
the  court  by  saving  it  from  immersion  in  the  turbid  pool 
of  politics,  are  the  strength  of  professional  feeling  among 
American  lawyers,  the  relation  of  the  bench  to  the  bar, 
the  power  of  the  legal  profession  in  the  country.  The  keen 
interest  which  the  profession  takes  in  the  law  secures  a 
large  number  of  acute  and  competent  critics  of  the  inter- 
j)retatiou  put  upon  the  law  by  the  judges.  Such  men  form 
a  tribunal  to  whose  opinion  the  judges  are  sensitive,  and 
all  the  more  sensitive  because  the  judges,  like  those  of  Eng- 
land, but  unlike  those  of  continental  Europe,  have  been  them- 
selves practising  counsel.  The  better  law3'ers  of  the  United 
States  do  not  sink  their  professional  sentiment  and  opinion 
in  their  party  sympathies.  The}'  know  good  law  even  when 
it  goes  against  themselves,  and  privately  condemn  as  bad 
law  a  decision  none  the  less  because  it  benefits  their  party  or 
their  client.  .The  Federal  judge  who  has  recently  quitted  the 
ranks  of  the  bar  remains  in  sympathy  with  it,  resj)ects  its 
views,  desires  its  approbation.  Both  his  inbred  professional 
habits,  and  his  respect  for  those  traditions  which  the  bar 
prizes,  restrain  him  from  prostituting  his  office  to  party 
objects.  Though  he  has  usually  been  a  politician,  and  owes 
his  promotion  to  his  party,  his  political  trappings  drop  off 
him  Avhen  he  mounts  the  Supreme  bench.  He  has  now 
nothing  to  fear  from  party  displeasure,  because  he  is  irre- 
movable (except  hj  impeachment),  nothing  to  hope  from 
party  favour,  because  he  is  at  the  top  of  the  tree  and  can 
climb  no  higher.  Virtue  has  all  the  external  conditions  in 
her   favour.     It  is  true  that  virtue  is  compatible   with   the 

nte  of  1875,  creating  the  Supreme  Court  of  Canada,  and  the  Government 
of  Ireland  Bill,  introduced  into  the  House  of  Commons  in  1886,  but  defeated 
there,  contained  (§  25)  a  proviso  enabling  the  Lord-Lieutenant  of  Ireland  or  a 
Secretary  of  State  to  refer  a  question  for  opinion  to  the  judicial  committee  of 
the  Privy  Council. 

1  The  President  sometimes,  for  the  benefit  of  the  public,  publishes  the  -writ- 
ten opinion  of  the  attorney-general  on  an  important  and  doubtful  point :  but 
such  an  opinion  has  no  more  authority  than  what  it  may  derive  from  the  pro- 
fessional eminence  of  that  officer. 


266  THE   NATIONAL   GOVERNMENT  part  i 

desire  to  extend  the  power  and  jurisdiction  of  the  court.  But 
even  allowing  that  this  motive  may  occasionally  sway  the 
judicial  mind,  the  circumstances  -which  surround  the  action 
of  a  tribunal  debarred  from  initiative,  capable  of  dealing 
only  with  concrete  cases  that  come  before  it  at  irregular 
intervals,  unable  to  appropriate  any  of  the  sweets  of  power 
other  than  power  itself,  make  a  course  of  systematic  usur- 
pation more  difficult  and  less  seductive  than  it  would  be  to 
a  legislative  assembly  or  an  executive  council.  As  the  re- 
spect of  the  bench  for  the  bar  tends  to  keep  the  judges  in 
the  straight  path,  so  the  respect  and  regard  of  the  bar  for 
the  bench,  a  regard  grounded  on  the  sense  of  professional 
brotherhood,  ensure  the  moral  influence  of  the  court  in  the 
country.  The  bar  has  usually  been  very  powerful  in  America, 
not  only  as  being  the  only  class  of  educated  men  who  are 
at  once  men  of  affairs  and  skilled  speakers,  but  also  because 
there  has  been  no  nobility  or  territorial  aristocracy  to  over- 
shadow it.^  Politics  have  been  largely  in  its  hands,  and 
must  remain  so  as  long  as  political  questions  continue  to 
be  involved  with  the  interpretation  of  constitutions.  For 
the  first  sixty  or  seventy  years  of  the  Republic  the  leading 
statesmen  w^ere  lawyers,  and  the  lawyers  as  a  whole  moulded 
and  led  the  public  opinion  of  the  country.  Xow  to  the 
better  class  of  American  lawyers  law  was  a  sacred  science, 
and  the  highest  court  which  dispensed  it  a  sort  of  Mecca, 
towards  which  the  faces  of  the  faithful  turned.  Hence  every 
constitutional  case  before  the  Supreme  court  was  closely 
watched,  the  reasonings  of  the  court  studied,  and  its  decisions 
appreciated  as  law  apart  from  their  bearing  on  political  doc- 
trines. I  have  heard  elderly  men  describe  the  interest  with 
which,  in  their  youth,  a  famous  advocate  who  had  gone  to 
Washington  to  argue  a  case  before  the  Supreme  court  was 
welcomed  by  the  bar  of  his  own  city  on  his  return,  how 
the  rising  men  crowded  round  him  to  hear  what  he  had 
to  tell  of  the  combat  in  that  arena  where  the  best  intellects 
of  the  nation  strove,  how  the  respect  which  he  never  failed  to 
express  for  the  ability  and  impartiality  of  the  court  com- 
municated itself  to  them,  how  admiration  bred  acquiescence, 

1  See  Chapter  XCVn.  post.    Professional  interest  in  law  seems  to  have  been 
stronger  in  the  last  generation  than  it  is  now. 


CHAP.  XXIV  THE   WORKING   OF  THE   COURTS  267 

and  the  whole  profession  accepted  expositions  of  the  law 
unexpected  by  many,  perhaps  unwelcome  to  most.  When  it 
was  felt  that  the  judges  had  honestly  sought  to  expound 
the  Constitution,  and  when  the  cogency  of  their  reasonings 
was  admitted,  resentment,  if  any  there  had  been,  passed 
away,  and  the  support  which  the  bar  gave  to  the  court  en- 
sured the  obedience  of  the  people. 

That  this  factor  in  the  maintenance  of  judicial  influence 
proved  so  potent  w^as  largely  due  to  the  personal  eminence  of 
the  judges.  One  must  not  call  that  a  result  of  fortune  which 
was  the  result  of  the  wisdom  of  successive  Presidents  in  choos- 
ing capable  men  to  sit  on  the  supreme  Federal  bench.  Yet  one 
man  was  so  singularly  fitted  for  the  office  of  chief  justice,  and 
rendered  such  incomparable  services  in  it,  that  the  Americans 
have  been  wont  to  regard  him  as  a  special  gift  of  favouring 
Providence.  This  was  John  Marshall,  -who  presided  over  the 
Supreme  court  from  1801  till  his  death  in  1835  at  the  age  of 
eighty,  and  whose  fame  overtops  that  of  all  other  American 
judges  more  than  Papinian  overtops  the  jiirists  of  Eome  or 
Lord  Mansfield  the  jurists  of  England.  No  other  man  did  half 
so  much  either  to  develop  the  Constitution  by  expounding  it, 
or  to  secure  for  the  judiciary  its  rightful  place  in  the  govern- 
ment as  the  living  voice  of  the  Constitution.  No  one  vindicated 
more  strenuously  the  duty  of  the  court  to  establish  the  author- 
ity of  the  fundamental  law  of  the  land,  no  one  abstained  more 
scrupulously  from  trespassing  on  the  field  of  executive  admin- 
istration or  political  controversy.  The  admiration  and  respect 
which  he  and  his  colleagues  won  for  the  court  remain  its  bul- 
wark :  the  traditions  which  were  formed  under  him  and  them 
have  continued  in  general  to  guide  the  action  and  elevate  the 
sentiments  of  their  successors. 

Nevertheless,  the  court  has  not  always  had  smooth  seas  to 
navigate.  It  has  more  than  once  been  shaken  by  blasts  of 
unpopularity.  It  has  not  infrequently  found  itself  in  conflict 
with  other  authorities. 

The  first  attacks  arose  out  of  its  decision  that  it  had  juris- 
diction to  entertain  suits  by  private  persons  against  a  State.^ 
This  point  was  set  at  rest  by  the  eleventh  amendment ;  but  the 
States  then  first  learnt  to  fear  the  Supreme  court  as  an  antag- 
1  Chisholni  V.  Georgia,  see  above,  p.  235. 


268 


THE   NATIONAL   GOVERXMENT 


oiiist.     In  1801,  in  an  application  requiring  the  secretary  of 
state  to  deliver  a  commission,  it  declared  itself  to  have  the 
power  to  compel  an  executive  ofi&cer  to  fulfil  a  ministerial  duty 
affecting  the  rights  of  individuals.^    President  Jefferson  pro- 
tested angrily  against  this  claim,  but  it  has  been  repeatedly  re- 
asserted, and  is  noAV  undoubted  law.     It  was  in  this  same  case 
that  the  court  first  explicitly  asserted  its  duty  to  treat  as  in- 
valid an  Act  of  Congress  inconsistent  with  the  Constitution. 
In  1805  its  independence  was  threatened  by  the  impeachment 
of  Justice  Chase,  the  aim  of  the  Eepublican  (Democratic) 
party  then  dominant  in  Congress  being  to  set  a  precedent  for 
ejecting,  by  means  of  impeachment,  judges  (and  especially 
Chief-Justice  ^Marshall),  whose  attitude  on  constitutional  ques- 
tions they  condemned.     The  acquittal  of  Chase  dispelled  this 
danger:  nor  could  John  Eandolph,  wiio  then  led  the  House, 
secure  the  acceptance  of  an  amendment  to  the  Constitution 
which  he  thereupon  proposed  for  enabling  the  President  to  re- 
move Federal  judges  on  an  address  of  both  Houses  of  Congress. 
In  1806  the  court  for  the  first  time  pronounced  a  State  statute 
void ;  in  1816  and  1821  it  rendered  decisions  establishing  its 
authority  as  a  supreme  court  of  appeal  from  State  courts  on 
"  federal  questions,"  and  unfolding  the  full  meaning  of  the 
doctrine  that   the  Constitution  and   Acts   of   Congress   duly 
made  in  pursuance  of  the  Constitution  are  the  fundamental 
and  supreme  law  of  the  land.     This  was  a  doctrine  which  had 
not  been  adequately  apprehended  even  by  lawj-ers,  and  its 
development,  legitimate  as  we  now  deem  it,  roused  opposition. 
The  ultra-Democrats  who  came  into  power  under  President 
Jackson  in  1829,  were  specially  hostile  to  a  construction  of  the 
Constitution  which  seemed  to  trench  \ipon  State  rights,-  and 
when  in  1832  the  Supreme  court  ordered  the  State  of  Georgia 
to  release  persons  imprisoned  under  a  Georgian  statute  which 

1  Marbury  v.  Madison,  1  Cranch,  137.  In  this  case  the  court  refused  to  issue 
the  mandamus  asked  for,  but  upon  the  ground  that  the  statute  of  Congress 
giving  to  the  Supreme  court  origiual  jurisdiction  to  issue  a  mandamus  was 
inconsistent  with  the  Constitution.  See  also  Kendal  v.  United  States,  12 
Peters,  616 ;   United  States  v.  Schurz,  102  U.  S.  378. 

2  Martin  Van  Buren  (President  18.37-41)  expressed  the  feelings  of  the  bulk 
of  his  party  when  he  complained  bitterly  of  the  encroachments  of  the  Supreme 
court,  and  declared  that  it  would  never  have  been  created  had  the  people  fore- 
seen the  powers  it  would  acquire. 


CHAP.  XXIV  THE    WORKING   OF   THE   COURTS  269 

the  court  declared  to  be  invalid,^  Jackson,  whose  duty  it  was 
to  enforce  the  decision  by  the  executive  arm,  remarked,  ''John 
Marshall  has  pronounced  his  judgment :  let  him  enforce  it  if 
he  can."  The  successful  resistance  of  Georgia  in  the  Cherokee 
dispute  -  gave  a  blow  to  the  authority  of  the  court,  and  marked 
the  beginning  of  a  new  period  in  its  history,  during  which,  in 
the  hands  of  judges  mostly  appointed  by  the  Democratic  party, 
it  made  no  further  advance  in  power. 

In  1857  the  Dred  Scott  judgment,  pronounced  by  a  majority 
of  the  judges,  excited  the  strongest  outbreak  of  displeasure  yet 
witnessed.  The  Ke})ublican  party,  then  rising  into  strength, 
denounced  this  decision  in  the  resolutions  of  the  convention 
which  nominated  Abraham  Lincoln  in  18G0,  and  its  doctrine 
as  to  citizenship  was  expressly  negatived  in  the  fourteenth 
constitutional  amendment  adopted  after  the  War  of  Secession. 

It  was  feared  that  the  political  leanings  of  the  judges  who 
formed  the  court  at  the  outbreak  of  the  war  would  induce  them 
to  throw  legal  difficulties  in  the  prosecution  of  the  measures 
needed  for  re-establishing  the  authority  of  the  Union.  These 
fears  proved  ungrounded,  although  some  contests  arose  as  to 
the  right  of  officers  in  the  Federal  army  to  disregard  writs  of 
habeas  corpus  issued  by  the  court.^  In  1868,  having  then  be- 
come Eepublican  in  its  sympathies  by  the  appointment  of  new 
members  as  the  older  judges  disappeared,  it  tended  to  sustain 
the  congressional  plan  of  reconstruction  which  President 
Johnson  desired  to  defeat,  and  in  subsequent  cases  it  has 
given  effect  to  most,  though  not  to  all,  of  the  statutes  passed 
by  Congress  under  the  three  amendments  which  abolished 
slavery  and  secured  the  rights  of  the  negroes.  In  1866  it 
refused  to  entertain  proceedings  instituted  for  the  purpose  of 
forbidding  the  President  to  execute  the  Reconstruction  Acts. 

Two  of  its  later  acts  are  thought  by  some  to  have  affected 

1  This  was  only  one  act  in  the  long  struggle  of  the  Cherokee  Indians  against 
the  oppressive  conduct  of  Georgia  —  conduct  which  the  court  emphatically 
condemned,  though  it  proved  powerless  to  help  the  unhappy  Cherokees. 

2  The  matter  did  not  come  to  an  absolute  conflict,  because  before  the  time 
arrived  for  the  court  to  direct  the  United  States  marshal  of  the  district  of 
Georgia  to  oummon  the  j^osse  comitcttiis  and  the  President  to  render  assistance 
in  liberating  the  prisoners,  the  prisoners  submitted  to  the  State  authorities, 
and  were  thereupon  released.  They  probably  believed  that  the  imperious 
Jackson  would  persist  in  his  hostility  to  the  Supreme  court. 

3  See  Ex  parte  MillU/an,  4  Wall.  12'J. 


270  THE   NATIONAL   GOVEKNMENT  part  i 

public  confidence.  One  of  these  was  the  reversal,  first  in  1871, 
and  again,  upon  broader  but  not  inconsistent  grounds,  in  1884, 
of  the  decision,  given  in  1870,  which  declared  invalid  the  Act 
of  Congress  making  government  paper  a  legal  tender  for  debts. 
The  original  decision  of  1870  was  rendered  by  a  majority  of 
five  to  three.  The  court  was  afterwards  changed  by  the  cre- 
ation of  an  additional  judgeship,^  and  by  the  appointment  of  a 
new  member  to  fill  a  vacancy  which  occurred  after  the  settle- 
ment, though  before  the  delivery,  of  the  first  decision.  Then 
the  question  was  brought  up  again  in  a  new  case  between 
different  parties,  and  decided  in  the  opposite  sense  (i.e.  in 
favour  of  the  power  of  Congress  to  pass  legal  tender  Acts)  by 
a  majority  of  five  to  four.  Finally,  in  1884,  another  suit  hav- 
ing brought  up  a  point  practically  the  same,  though  under  a 
later  statute  passed  by  Congress,  the  court  determined  with 
only  one  dissentient  voice  that  the  power  existed.^  This  last 
decision  excited  some  criticism,  especially  among  the  more 
conservative  lawyers,  because  it  seemed  to  remove  restrictions 
hitherto  supposed  to  exist  on  the  authority  of  Congress,  rec- 
ognizing the  right  to  establish  a  forced  paper  currency  as  an 
attribute  of  the  sovereignty  of  the  national  government.  But 
be  the  decision  right  or  wrong,  a  point  on  which  high  author- 
ities are  still  divided,  the  reversal  by  the  highest  court  in  the 
land  of  its  own  previous  decision  may  have  tended  to  unsettle 
men's  reliance  on  the  stability  of  the  law  ;  while  the  manner 
of  the  earlier  reversal,  following  as  it  did  on  the  appointment 
of  two  new  justices,  both  known  to  be  in  favour  of  the  view 
which  the  majority  of  the  court  had  just  disapproved,  disclosed 
a  weak  point  in  the  constitution  of  the  tribunal  which  may 
some  day  prove  fatal  to  its  usefulness. 

The  other  misfortune  was  the  interposition  of  the  court  in 
the  presidential  electoral  count  dispute  of  1877.^^  The  five 
justices  of  the  Supreme  court  who  were  included  in  the  elec- 
toral commission  then  appointed  voted  on  party  lines  no  less 
steadily  than  did  the  senators  and  representatives  who  sat  on 

1  Appointed,  however,  under  an  Act  passed  in  April  1860. 

2  The  earlier  decision  in  favour  of  the  power  deduced  it  from  war  powers, 
the  later  from  the  general  sovereignty  of  the  national  government.  See  Hep- 
burn V.  Griswold,  8  Wall.  603;  Legal  Tender  Cases,  12  "Wall.  457;  Juilliard 
v.  Greenman,  110  U.  S.  421. 

3  See  above,  Chapter  V. 


CHAP.  XXIV  THE   WORKING   OF   THE   COURTS  271 


it.  A  function  scarcely  judicial,  and  certainly  not  contem- 
plated by  the  Constitution,  was  then  for  the  first  time  thrown 
upon  the  judiciary,  and  in  discharging  it  the  judiciary  acted 
exactly  like  non-judicial  persons. 

Notwithstanding  this  occurrence,  which  after  all  was  quite 
exceptional,  the  credit  and  dignity  of  the  Supreme  court  stand 
very  high.  No  one  of  its  members  has  ever  been  suspected  of 
corruption,  and  comparatively  few  have  allowed  their  political 
sympathies  to  disturb  their  official  judgment.  Though  for 
many  years  back  every  President  has  appointed  only  men  of 
his  own  party,  and  frequently  leading  politicians  of  his  own 
party,'  the  new-made  judge  has  left  partisanship  behind  him, 
while  no  doubt  usually  retaining  that  bias  or  tendency  of  his 
mind  which  party  training  produces.  When  a  large  majority 
of  the  judges  belong  to  one  party,  the  other  party  regret  the 
fact,  and  welcome  the  prospect  of  putting  in  some  of  their  own 
men  as  vacancies  occur ;  yet  the  desire  for  an  equal  represen- 
tation of  both  parties  is  based,  not  on  a  fear  that  suitors  will 
suffer  from  the  influence  of  party  spirit,  but  on  the  feeling 
that  when  any  new  constitutional  question  arises  it  is  right 
that  the  tendencies  which  have  characterized  the  view  of  the 
Constitution  taken  by  the  Democrats  on  the  one  hand  and  the 
Republicans  on  the  other,  should  each  be  duly  represented. 

Apart  from  these  constitutional  questions,  the  value  of  the 
Federal  courts  to  the  country  at  large  has  been  inestimable. 
They  have  done  much  to  meet  the  evils  which  an  elective  and 
ill-paid  State  judiciary  inflicts  on  some  of  the  newer  and  a  few 
even-  of  the  older  States.  The  Federal  Circuit  and  District 
judges,  small  as  are  their  salaries,  are  in  most  States  individu- 
ally superior  men  to  the  State  judges,  because  the  greater 
security  of  tenure  induces  abler  men  to  accept  the  post. 
Being  irremovable,  they  feel  themselves  independent  of  par- 
ties and  politicians,  whom  the  elected  State  judge,  holding  for 

1 1  have  heard  American  lawyers  express  surprise  as  well  as  admiration  at 
the  occasional  departures  in  England  (as  notably  in  the  case  of  Lord  Justice 
Holker,  who,  having  been  Attorney-General  of  one  party,  was,  in  respect  of 
his  eminent  merits,  appointed  Lord  Justice  of  Appeal  by  the  other)  from  the 
practice  of  political  appointments  to  judicial  office.  Such  non-political  ap- 
pointments are  however  occasionally  made  in  the  several  States  by  the  gov- 
ernors, or  even  (as  in  the  case  of  Chief-Justice  Kedtield  of  Vermont)  by  the 
legislature. 


THE   NATIONAL   GOVERNMENT 


a  limited  term,  may  be  tempted  to  couciliate  with  a  view  to 
re-election.  Plaintiffs,  therefore,  when  they  have  a  choice  of 
suing  in  a  State  court  or  a  Federal  court,  frequently  prefer  the 
latter ;  and  the  litigant  who  belongs  to  a  foreign  country,  or 
to  a  different  State  from  that  in  which  his  opponent  resides, 
may  think  his  prospects  of  an  unbiassed  decision  better  before 
it  than  before  a  State  tribunal.  Kor  is  it  without  interest  to 
add  that  criminal  justice  is  more  strictly  administered  in  the 
Federal  courts. 

Federal  judgeships  of  the  second  and  third  rank  (Circuit 
and  District)  have  been  hitherto  given  to  the  members  of  the 
President's  party,  and  by  an  equally  well-established  usage,  to 
persons  resident  in  the  State  or  States  where  the  circuit  or 
district  court  is  held.  In  1891,  however,  a  Kepublican  Presi- 
dent appointed  two  Democrats  to  be  judges  of  the  new  circuit 
courts  of  appeals,  and  placed  several  Democrats  on  the  (tem- 
porary) Private  Land  Claims  court.  Cases  of  corruption  are 
practically  unknown,  and  partisanship  has  been  rare.  The 
chief  defects  have  been  the  inadequacy  of  the  salaries,  and 
the  insufficiency  of  the  staff  in  the  more  populous  commercial 
States  to  grapple  with  the  vast  and  increasing  business  which 
flows  in  upon  them.  So  too,  in  the  Supreme  court,  arrears 
have  so  accumulated  that  it  is  sometimes  three  years  or  more 
from  the  time  when  a  cause  is  entered  till  the  day  when  it 
comes  on  for  heating.  Some  have  proposed  to  meet  this  evil 
by  limiting  the  right  of  appeal  to  cases  involving  a  consider- 
able sum  of  money ;  others  would  divide  the  Supreme  court 
into  two  divisional  courts  for  the  hearing  of  ordinary  suits, 
reserving  for  the  full  court  points  affecting  the  construction  of 
the  Constitution. 

One  question  remains  to  be  put  and  answered. 

The  Supreme  court  is  the  living  voice  of  the  Constitution  ^ 
—  that  is,  of  the  will  of  the  people  expressed  in  the  funda- 
mental law  they  have  enacted.  It  is,  therefore,  as  some  one 
has  said,  the  conscience  of  the  people,  who  have  resolved  to 
restrain  themselves  from   hasty  or  unjust  action  by  placing 

1  The  Romans  called  their  chief  judicial  officer  the  praetor.  "  the  li\ing  voice 
of  the  civil  law'';  but  as  this  '"civil  law'"  consisted  laroely  of  custom,  he 
naturally  enjoyed  a  wider  discretion  in  moulding  and  expanding  as  well  as  in 
expounding  the  law  than  do  the  American  judges,  who  have  a  formally  enacted 
constitution  to  guide  and  restrain  them. 


CHAP.  XXIV  THE    ^YORKIXG   OF   THE   COURTS  273 


their  representatives  under  the  restriction  of  a  permanent 
law.  It  is  the  guarantee  of  the  minority,  who,  when  threat- 
ened by  the  impatient  vehemence  of  a  majority,  can  appeal  to 
this  permanent  law,  finding  the  interpreter  and  enforcer  thereof 
in  a  court  set  high  above  the  assaults  of  faction. 

To  discharge  these  momentous  fnnctions,  the  court  must  be 
stable  even  as  the  Constitution  is  stable.  Its  spirit  and  tone 
must  be  that  of  the  people  at  their  best  moments.  It  must 
resist  transitory  impulses,  and  resist  them  the  more  firmly  the 
more  vehement  they  are.  Entrenched  behind  impregnable 
ramparts,  it  must  be  able  to  defy  at  once  the  open  attacks  of 
the  other  departments  of  the  government,  and  the  more  dan- 
gerous, because  impalpable,  seductions  of  popular  sentiment. 

Does  it  possess,  has  it  displayed,  this  strength  and  stabil- 
ity ? 

It  has  not  always  followed  its  own  former  decisions.  This 
is  natural  in  a  court  whose  errors  cannot  be  cured  by  the 
intervention  of  the  legislature.  The  English  final  Court  of 
Appeal  always  follows  its  previous  decisions,  though  high 
authorities  have  declared  that  cases  may  be  imagined  in  which 
it  would  refuse  to  do  so.  And  that  court  (the  House  of 
Lords)  can  afford  so  to  adhere,  because,  when  an  old  decision 
begins  to  be  condemned.  Parliament  can  forthwith  alter  the 
law.  But  as  nothing  less  than  a  constitutional  amendment 
can  alter  the  law  contained  in  the  Federal  Constitution,  the 
Supreme  court  must  choose  between  the  evil  of  unsettling  the 
law  by  reversing,  and  the  evil  of  perpetuating  bad  law  by  fol- 
lowing, a  former  decision.-  It  may  reasonably,  in  extreme 
cases,  deem  the  latter  evil  the  greater. 

The  Supreme  court  feels  the  touch  of  public  opinion.  Opin- 
ion is  stronger  in  America  than  anywhere  else  in  the  world,  and 
judges  are  only  men.  To  yield  a  little  may  be  prudent,  for  the 
tree  that  cannot  bend  to  the  blast  may  be  broken.  There  is, 
moreover,  this  ground  at  least  for  presuming  public  opinion  to 
be  right,  that  through  it  the  progressive  judgment  of  the  world 
is  expressed.  Of  course,  whenever  the  law  is  clear,  because  the 
words  of  the  Constitution  are  plain  or  the  cases  interpreting 
them  decisive  on  the  point  raised,  the  court  must  look  solely  to 
those  words  and  cases,  and  cannot  permit  any  other  considera- 
tion to  affect  its  mind.     But  when  the  terms  of  the  Constitution 

VOL.  I  T 


274  THE   NATIONAL   GOVERNMENT  part  i 

admit  of  more  than  one  construction,  and  when  previous  deci- 
sions have  left  the  true  construction  so  far  open  that  the  point 
in  question  may  be  deemed  new,  is  a  court  to  be  blamed  if  it 
prefers  the  construction  which  the  bulk  of  the  people  deem 
suited  to  the  needs  of  the  time  ?  A  court  is  sometimes  so 
swayed  consciously,  more  often  unconsciously,  because  the  per- 
vasive sympathy  of  numbers  is  irresistible  even  by  elderly  law- 
yers. A  remarkable  example  is  furnished  by  the  decisions  (in 
1876)  of  the  Supreme  court  in  the  so-called  Granger  cases,  suits 
involving  the  power  of  a  State  to  subject  railways  and  other 
corporations  or  persons  exercising  what  are  called "  public 
trades  "  to  restrictive  legislation  without  making  pecuniary  com- 
pensation.^ I  do  not  presume  to  doubt  the  correctness  of  these 
decisions  ;  but  they  evidently  represent  a  different  view  of  the 
sacredness  of  private  rights  and  of  the  powers  of  a  legislature 
from  that  entertained  by  Chief- Justice  Marshall  and  his  contem- 
poraries. They  reveal  that  current  of  opinion  which  now  runs 
strongly  in  America  against  what  are  called  monopolies  and 
the  powers  of  incorporated  companies. 

The  Supreme  court  has  changed  its  colour,  i.e.  its  temper  and 
tendencies,  from  time  to  time,  according  to  the  political  procliv- 
ities of  the  men  who  composed  it.  It  changes  very  slowly, 
because  the  vacancies  in  a  small  body  happen  rarely,  and  its  com- 
position therefore  often  represents  the  predominance  of  a  past 
and  not  of  the  presently  ruling  party.  From  1789  down  till  the 
death  of  Chief-Justice  Marshall  in  1835  its  tendency  was  to  the 
extension  of  the  powers  of  the  Federal  government,  and  there- 
with of  its  own  jurisdiction,  because  the  ruling  spirits  in  it 
were  men  who  belonged  to  the  old  Federalist  party,  though  that 
party  fell  in  1800,  and  disappeared  in  1814.  From  1835  till 
the  War  of  Secession  its  sympathies  were  with  the  doctrines  of 
the  Democratic  party.  Without  actually  abandoning  the  posi- 
tions of  the  previous  period,  the  court,  during  these  years  when 
Chief-Justice  Taney  presided  over  it,  leant  against  any  further 
extension  of  Federal  power  or  of  its  own  jurisdiction.     During 

1  See  Mann  v.  Illinois,  aud  the  following  cases  in  94  U.  S.  Rep.  193  (with  which 
compare  C.  M.  &  St.  P.  R.  R.  Co.  v.  Minn.,  134  U.  S.  418 ;  and  Budd  v.  N.  Y.,  12  S.  C. 
Reporter,  648).  This  was  one  of  those  cases  in  which  the  court  felt  bound  to 
regard  not  only  the  view  whicli  it  took  itself  of  the  meaning  of  the  Constitution 
hut  that  which  a  legislature  might  reasonably  take.  —  See  Chapter  XXXIV.  post. 
As  to  the  non-liability  to  make  compensation  where  licences  for  the  sale  of  intox- 
icants are  forbidden,  see  Mvrjler  v.  Kansas,  123  U.  S.  Rep.  G23. 


CHAP.  XXIV  THE    WORKING   OF    THE   COURTS  .  275 

and  after  the  war,  when  the  ascendency  of  the  Republican  party 
had  begun  to  change  the  composition  of  the  court,  a  third  pe- 
riod opened.  Centralizing  ideas  were  again  powerful :  the  vast 
war  powers  asserted  by  Congress  were  in  most  instances  sup- 
ported by  judicial  decision,  the  rights  of  States  while  main- 
tained (as  in  the  Granger  cases)  as  against  private  persons  or 
bodies,  were  for  a  time  regarded  with  less  favour  whenever  they 
seemed  to  conflict  with  those  of  the  Federal  government.  In 
none  of  these  three  periods  can  the  judges  be  charged  with  any 
prostitution  of  their  functions  to  party  purposes.  Their  action 
flowed  naturally  from  the  habits  of  thought  they  had  formed 
before  their  accession  to  the  bench,  and  from  the  sympathy  they 
could  not  but  feel  with  the  doctrines  on  whose  behalf  they  had 
contended.  Even  on  the  proverbially  upright  and  impartial 
bench  of  England  the  same  tendencies  may  be  discerned.  There 
are  constitutional  questions,  and  questions  touching  what  may 
be  called  the  policy  of  the  law,  which  would  be  decided  differ- 
ently by  one  English  judge  or  by  another,  not  from  any  con- 
scious wish  to  favour  a  party  or  a  class,  but  because  the  views 
which  a  man  holds  as  a  citizen  cannot  fail  to  colour  his  judg- 
ment even  on  legal  points. 

The  Fathers  of  the  Constitution  studied  nothing  more  than  to 
secure  the  complete  independence  of  the  judiciary.  The  Pres- 
ident was  not  permitted  to  remove  the  judges,  nor  Congress  to 
diminish  their  salaries.  One  thing  only  was  either  forgotten 
or  deemed  undesirable,  because  highly  inconvenient,  to  deter- 
mine, —  the  number  of  judges  in  the  Supreme  court.  Here 
was  a  weak  point,  a  joint  in  the  court's  armour  through  which 
a  weapon  might  some  day  penetrate.  Congress  having  in  1801, 
pursuant  to  a  power  contained  in  the  Constitution,  established 
sixteen  Circuit  courts,  President  Adams,  immedia'tely  before  he 
quitted  office,  appointed  members  of  his  own  party  to  the  jus- 
ticeships thus  created.  When  President  Jefferson  came  in,  he 
refused  to  admit  the  validity  of  the  appointments ;  and  the 
newly  elected  Congress,  which  was  in  sympathy  with  him,  abol- 
ished the  Circuit  courts  themselves,  since  it  could  find  no  other 
means  of  ousting  the  new  justices.  This  method  of  attack, 
whose  constitutionality  has  been  much  doubted,  cannot  be  used 
against  the  Supreme  court,  because  that  tribunal  is  directly  cre- 
ated by  the  Constitution.     But  as  the  Constitution  does  not  pre- 


276  THE   NATIONAL   GOVERNMENT  part  i 

scribe  tlie  number  of  justices,  a  statute  may  increase  or  dimin- 
ish the  number  as  Congress  thinks  fit.  In  1S66,  when  Congress 
was  in  fierce  antagonism  to  President  Johnson,  and  desired  to 
prevent  him  from  appointing  any  judges,  it  reduced  the  num- 
laer,  which  was  then  ten,  by  a  statute  providing  that  no  vacancy 
should  be  filled  np  till  the  number  was  reduced  to  seven.  In 
1869,  when  Johnson  had  been  succeeded  by  Grant,  the  number 
was  raised  to  nine,  and  presently  the  altered  court  allowed  the 
question  of  the  validity  of  the  Legal  Tender  Act,  just  before 
determined,  to  be  reopened.  This  method  is  plainly  susceptible 
of  further  and  possibly  dangerous  application.  Suppose  a  Con- 
gress and  President  bent  on  doing  something  which  the  Supreme 
court  deems  contrary  to  the  Constitution.  They  pass  a  statute. 
A  case  arises  under  it.  The  court  on  the  hearing  of  the  case 
unanimously  declares  the  statute  to  be  null,  as  being  beyond 
the  powers  of  Congress.  Congress  forthwith  passes  and  the 
President  signs  another  statute  more  than  doubling  the  num- 
ber of  the  justices.  The  President  appoints  to  the  new  jus- 
ticeships men  who  are  pledged  to  hold  the  former  statute  con- 
stitutional. The  Senate  confirms  his  appointments.  Another 
case  raising  the  validity  of  the  disputed  statute  is  brought  up 
to  the  court.  The  new  justices  outvote  the  old  ones  :  the  stat- 
ute is  held  valid :  the  security  provided  for  the  protection  of 
the  Constitution  is  gone  like  a  morning  mist. 

What  prevents  such  assaults  on  the  fundamental  law  — 
assaults  which,  however  immoral  in  substance,  would  be  per- 
fectly legal  in  form  ?  Not  the  mechanism  of  government,  for 
all  its  checks  have  been  evaded.  Not  the  conscience  of  the 
legislature  and  the  President,  for  heated  combatants  seldom 
shrink  from  justifying  the  means  by  the  end.  Nothing  but 
the  fear  of  the  people,  whose  broad  good  sense  and  attachment 
to  the  great  principles  of  the  Constitution  may  generally  be 
relied  on  to  condemn  such  a  perversion  of  its  forms.  Yet  if 
excitement  has  risen  high  over  the  country,  a  majority  of  the 
people  may  acquiesce  ;  and  then  it  matters  little  whether  what 
is  really  a  revokition  be  accomplished  by  openly  violating  or 
by  merely  distorting  the  forms  of  law.  To  the  people  we 
come  sooner  or  later :  it  is  upon  their  wisdom  and  self-restraint 
that  the  stability  of  the  most  cunningly  devised  scheme  of 
government  will  in  the  last  resort  depend. 


CHAPTEK   XXV 

COMPARISON    OF    THE    AMERICAN    AND    EUROPEAN    SYSTEMS 

The  relations  to  one  another  of  the  different  branches  of  the 
government  in  the  United  States  are  so  remarkable  and  so  full 
of  instruction  for  other  countries,  that  it  seems  desirable,  even 
at  the  risk  of  a  little  repetition,  to  show  by  a  comparison  Avith 
the  Cabinet  or  parliamentary  system  of  European  countries 
how  this  complex  American  machinery  actually  works. 

The  English  system  on  which  have  been  modelled,  of  course 
with  many  variations,  the  systems  of  France,  Belgium,  Hol- 
land, Italy,  Germany,  Hungary  (where,  however,  the  English 
scheme  has  been  compounded  with  an  ancient  and  very  inter- 
esting native-born  constitution),  Sweden,  Norway,  Denmark, 
Spain,  and  Portugal,  as  well  as  the  constitutions  of  the  great 
self-governing  English  colonies  in  North  America,  the  Cape, 
and  Australasia  —  this  English  system  places  at  the  head  of 
the  state  a  person  in  whose  name  all  executive  acts  are  done, 
and  who  is  (except  in  France)  irresponsible  and  irremovable.^ 
His  acts  are  done  by  the  advice  and  on  the  responsibility  of 
ministers  chosen  nominally  by  him,  but  really  by  the  repre- 
sentatives of  the  people — usually,  but  not  necessarily,  from 
among  the  members  of  the  legislature.  The  representatives 
are,  therefore,  through  the  agents  whom  they  select,  the  true 
government  of  the  country.  When  the  representative  assembly 
ceases  to  trust  these  agents,  the  latter  (unless  they  dissolve 
the  legislature)  resign,  and  a  new  set  are  appointed.  Thus  the 
executive  as  well  as  the  legislative  power  really  belongs  to  the 
majority  of  the  representative  chamber,  though  in  appointing 
agents,  an  expedient  which  its  size  makes  needful,  it  is  forced 

1  In  the  British  colonies  the  governor  is  irremovable  by  the  colony,  and 
irresponsible  to  its  legislature,  though  responsible  to  and  removable  by  the 
home  government. 

277 


278  THE   NATIONAL    GOVEENMENT 


to  leave  in  the  hands  of  these  agents  a  measure  of  discretion 
sufficient  to  make  them  appear  distinct  from  it,  and  sometimes 
to  tempt  them  to  acts  which  their  masters  disapprove.  As  the 
legislature  is  thus  in  a  sense  executive,  so  the  executive  gov- 
ernment, the  council  of  ministers  or  cabinet,  is  in  so  far  legis- 
lative that  the  initiation  of  measures  rests  very  largely  with 
them,  and  the  carrying  of  measures  through  the  Chamber  de- 
mands their  advocacy  and  counter  pressure  upon  the  majority 
of  the  representatives.  They  are  not  merely  executive  agents 
but  also  legislative  leaders.  One  may  say,  indeed,  that  the 
legislative  and  executive  functions  are  interwoven  as  closely 
under  this  system  as  under  absolute  monarchies,  such  as  Impe- 
rial Rome  or  modern  Russia ;  and  the  fact  that  taxation,  while 
effected  by  means  of  legislation,  is  the  indispensable  engine  of 
administration,  shows  how  inseparable  are  these  two  appar- 
ently distinct  powers. 

Under  this  system  the  sovereignty  of  the  legislature  may  be 
more  or  less  complete.  It  is  most  complete  in  France ;  least 
complete  in  Germany  and  Prussia,  where  the  power  of  the 
Emperor  and  King  is  great  and  not  declining.  But  in  all  these 
countries  not  only  are  the  legislature  and  executive  in  close 
touch  with  one  another,  but  they  settle  their  disputes  without 
reference  to  the  judiciary.  The  courts  of  law  cannot  be  in- 
voked by  the  executive  against  the  legislature,  because  ques- 
tions involving  the  validity  of  a  legislative  act  do  not  come 
before  it,  since  the  legislature  is  either  completely  sovereign, 
as  in  England,  or  the  judge  of  its  own  competence,  as  in  Bel- 
gium. The  judiciary,  in  other  words,  does  not  enter  into  the 
consideration  of  the  political  part  of  the  machinery  of  govern- 
ment. 

This  system  of  so-called  cabinet  government  seems  to  Euro- 
peans now,  who  observe  it  at  work  over  a  large  part  of  the 
world,  an  obvious  and  simple  system.  We  are  apt  to  forget 
that  it  was  never  seen  anywhere  till  the  English  developed  it 
by  slow  degrees,  and  that  it  is  a  very  delicate  system,  depend- 
ing on  habits,  traditions,  and  understandings  which  are  not 
easily  set  forth  in  words,  much  less  transplanted  to  a  new  soil. 

We  are  also  prone  to  forget  how  very  recent  it  is.  People 
commonly  date  it  from  the  reign  of  King  William  the  Third ; 
but  it  worked  very  irregularly  till  tlie  Hanoverian  kings  came 


CHAP.  XXV      AMERICAN   AND   EUROPEAN   SYSTEMS  279 

to  the  throne,  and  even  then  it  at  first  worked  by  means  of  a 
monstrous  system  of  bribery  and  place-mongering.  In  the  days 
of  George  the  Third  the  personal  power  of  the  Crown  for  a 
while  revived  and  corruption  declined.^  The  executive  head 
of  the  state  was,  during  the  latter  decades  of  the  century,  a 
factor  apart  from  his  ministers.  They  were  not  then,  as  now, 
a  mere  committee  of  Parliament  dependent  upon  Parliament, 
but  rather  a  compromise  between  the  king's  will  and  the  will 
of  the  parliamentary  majority.  They  deemed  and  declared 
themselves  to  owe  a  duty  to  the  king  conflicting  with,  some- 
times overriding,  their  duty  to  Parliament,  Those  phrases  of 
abasement  before  the  Crown  which  when  now  employed  by 
prime  ministers  amuse  us  by  their  remoteness  from  the  reali- 
ties of  the  case,  then  expressed  realities.  In  1787,  when  the 
Constitutional  Convention  met  at  Philadelphia,  the  Cabinet 
system  of  government  was  in  England  still  immature.  It  was 
so  immature  that  its  true  nature  had  not  been  perceived.^  And 
although  we  now  can  see  that  the  tendency  was  really  towards 
the  depression  of  the  Crown  and  the  exaltation  of  Parliament, 
men  might  well,  when  they  compared  the  influence  of  George 
III.  with  that  exercised  by  George  I.,^  argue  in  the  terms  of 

1  Corruption  was  possible,  because  the  House  of  Commons  did  not  look  for 
support  to  the  nation,  its  debates  were  scantily  reported,  it  had  little  sense  of 
responsibility.  An  active  king  was  therefore  able  to  assert  himself  against  it, 
and  to  form  a  party  in  it,  as  well  as  outside  of  it,  which  regarded  him  as  its 
head.  This  forced  the  Whigs  to  throw  themselves  upon  the  nation  at  large; 
the  Tories  did  the  same ;  corruption  withered  away ;  and  as  Parliament  came 
more  and  more  under  the  watchful  eye  of  the  peoi^le,  and  responsible  to  it,  the 
influence  of  the  king  declined  and  vanished. 

-  Gouverneur  Morris,  however,  one  of  the  acutest  minds  in  the  Convention 
of  1787,  remarked  there,  "Our  President  will  be  the  British  (Prime)  Minister. 
If  Mr.  Fox  had  carried  his  India  Bill,  he  would  have  made  the  Minister  the 
King  in  form  almost  as  well  as  in  substance."  —  Elliot's  Debates,  i.361.  Roger 
Sherman,  though  he  saw  the  importance  of  the  Cabinet,  looked  on  it  as  a  mere 
engine  in  the  Crown's  hands.  "  The  nation,"  he  observed,  in  the  Convention 
of  1787,  "  is  in  fact  governed  by  the  Cabinet  council,  who  are  the  creatures  of 
the  Crown.  The  consent  of  Parliament  is  necessary  to  give  sanction  to  their 
measures,  and  tliis  they  easily  obtain  by  the  influence  of  the  Crown  in  ap- 
pointing to  all  offices  of  honour  and  profit."  It  must  be  remembered  that 
the  House  of  Lords  was  far  more  powerful  in  1787  than  it  now  is,  not  only 
as  a  branch  of  the  legislature,  but  in  respect  of  the  boroughs  owned  by  the 
leading  peers:  and  therefore  the  dependence  of  the  ministry  on  the  House  of 
Commons  was  a  less  prominent  feature  of  the  Constitution  than  it  is  now. 

3  George  III.  had  tlie  advantage  of  being  a  national  king,  whereas  his  two 
predecessors  had  been  Germans  by  language  and  habits  as  well  as  by  blood. 


280  THE   NATIONAL   GOVERNMENT  part  i 

Dunning's  famous  resolution,  that  "the  power  of  the  Crown 
has  increased,  is  increasing,  and  ought  to  be  diminished."  ^ 

The  greatest  problem  tliat  free  peoples  have  to  solve  is  how 
to  enable  the  citizens  at  large  to  conduct  or  control  the  execu- 
tive business  of  the  state.  England  was  in  1787  the  only- 
nation  (the  cantons  of  Switzerland  were  so  small  as  scarcely 
to  be  thought  of)  that  had  solved  this  problem,  firstly,  by  the 
development  of  a  representative  system,  secondly,  by  giving 
to  her  representatives  a  large  authority  over  the  executive. 
The  Constitutional  Convention,  therefore,  turned  its  eyes  to 
her  when  it  sought  to  constitute  a  free  government  for  the 
new  nation  which  the  "  more  perfect  union "  of  the  States 
was  calling  into  conscious  being. 

Very  few  of  the  members  of  the  Convention  had  been  in 
England  so  as  to  know  her  constitution,  such  as  it  then  was, 
at  first  hand.  Yet  there  were  three  sources  whence  light  fell 
upon  it,  and  for  that  light  they  were  grateful.  One  was  their 
experience  in  dealing  with  the  mother  country  since  the  quar- 
rel began.  They  saw  in  Britain  an  executive  largely  influ- 
enced by  the  personal  volitions  of  the  king,  and  in  its  conduct 
of  colonial  and  foreign  affairs  largely  detached  from  and  inde- 
pendent of  Parliament,  since  it  was  able  to  take  tyrannical 
steps  without  the  previous  knowledge  or  consent  of  Parlia- 
ment, and  able  afterwards  to  defend  those  steps  by  alleging  a 

His  popularity  contribvited  to  his  influence  in  politics.  Mrs.  Papendiek's  Diary 
contains  some  amusing  illustrations  of  the  exuberant  demonstrations  of  "  loy- 
alty "  which  he  excited.  When  he  went  to  Weymouth  for  sea-bathing  after 
his  recovery  from  the  first  serious  attack  of  lunacy,  crowds  gathered  along  the 
shore,  and  bands  of  music  struck  up  "  God  save  the  King  "  when  he  ducked 
his  head  beneath  the  brine. 

1  It  is  not  easy  to  say  when  the  principle  of  the  absolute  dependence  of  min- 
isters on  a  parliamentary  majority  without  regard  to  the  wishes  of  the  Crown 
passed  into  a  settled  doctrine.  (Needless  to  say  that  it  has  received  no  for- 
mally legal  recognition,  but  is  merely  usage.)  The  long  coincidence  during  the 
dominance  of  Pitt  and  his  Tory  successors  down  till  1827  of  the  wishes  and 
interests  of  the  Crown  with  those  of  the  parliamentary  majority  prevented 
the  question  from  arising  in  a  practical  shape.  Even  in  1827  Mr.  Canning  writes 
to  J.  W.  Croker:  —  "Am  I  to  understand,  then,  tliat  you  consider  the  King 
[George  IV.]  as  completely  in  the  hands  of  the  Tory  aristocracy  as  his  father, 
or  rather  as  George  II.  was  in  the  hands  of  the  Whigs?  If  so,  George  III. 
reigned  and  Mr.  Pitt  (both  father  and  son)  administered  the  Government  in 
vain.  I  have  a  better  opinion  of  the  real  vigour  of  the  Crown  when  it  chooses 
to  put  forth  its  own  strength,  and  I  am  not  without  some  reliance  on  the  body 
of  the  people!  "  —  Croker  Correspondence,  vol.  i.  p.  368. 


CHAP.  XXV      AMERICAN   AND   EUROPEAN   SYSTEMS  281 


necessity  whereof  Parliament,  wanting  confidential  informa- 
tion, could  imperfectly  judge.  It  was  in  these  colonial  and 
foreign  affairs  that  the  power  of  the  Crown  chiefly  lay  (as, 
indeed,  to  this  day  the  authority  of  Parliament  over  the 
executive  is  smaller  here  than  in  any  other  department,  because 
secrecy  and  promptitude  are  more  essential),  so  they  could 
not  be  expected  to  know  for  how  much  less  the  king  counted 
in  domestic  affairs.  Moreover,  there  was  believed  to  be  often 
a  secret  junto  which  really  controlled  the  ministry,  because 
acting  in  concert  with  the  Crown  ;  and  the  Crown  had  power- 
inl  engines  at  its  disposal,  bribes  and  honours,  pensions  and 
places,  engines  irresistible  by  the  average  virtue  of  represen- 
tatives whose  words  and  votes  were  not  reported,  and  nearly 
half  of  whom  were  the  nominees  of  some  magnate.^ 

The  second  source  was  the  legal  presentation  of  the  English 
Constitution  in  scientific  text-books,  and  particularly  in  Black- 
stone,  whose  famous  Commentaries,  first  published  in  1765 
(their  substance  having  been  delivered  as  professorial  lectures 
at  Oxford  in  1758  and  several  succeeding  years),  had  quickly 
become  the  standard  authority  on  the  subject.  Now  Black- 
stone,  as  is  natural  in  a  lawyer  who  looks  rather  to  the  strict 
letter  of  the  law  than  to  the  practice  which  had  grown  up  modi- 
fying it,  describes  the  royal  prerogative  in  terms  more  appro- 
priate to  the  days  of  the  Stuarts  than  to  those  in  which  he 
wrote,  and  dwells  on  the  independence  of  the  executive,  while 
also  declaring  the  withholding  from  it  of  legislative  power  to 
be  essential  to  freedom.^ 

1  George  III.  had  pocket  boroughs  and  a  strong  parliamentary  following. 
Hamilton  doubted  whether  the  British  Constitution  could  be  worked  without 
corruption. 

^  See  Blackstone,  Commentaries,  bk.  i.  chap,  ii.  —  "  Whenever  the  power 
of  making  and  that  of  enforcing  the  laws  are  united  together,  there  can  be  no 
public  liberty.  .  .  .  Where  the  legislative  and  executive  authority  are  in  dis- 
tinct hands,  the  former  will  take  care  not  to  entrust  the  latter  with  so  large  a 
power  as  may  tend  to  the  subversion  of  its  own  independence,  and  therewith 
of  the  liberty  of  the  subject.  .  .  .  The  Cro-mi  cannot  of  itself  begin  any  altera- 
tion in  the  present  established  law ;  but  it  may  approve  or  disapprove  of  the 
alterations  suggested  and  consented  to  by  the  two  Houses.  The  legislative, 
therefore,  cannot  abridge  the  executive  power  of  any  rights  which  it  now  has 
by  law  without  its  own'consent."  There  is  no  hint  here,  or  in  chap.  vii.  on  the 
royal  prerogative,  that  the  royal  power  of  disapproval  had  not  been  in  fact 
exercised  for  some  fifty  years.  Blackstone  does  not  quote  Montesquieu  for 
the  particular  proposition  that  the  powers  must  be  separated,  but  has  evi- 
dently been  influenced  by  him.    A  little  later  he  cites  a  famous  dictum,  "  The 


282  THE   NATIONAL   GOVERNMENT  part  i 

The  third  source  was  the  view  of  the  English  Constitution 
given  by  the  political  philosophers  of  the  eighteenth  century, 
among  whom,  since  he  was  by  far  the  most  important,  we  need 
look  at  Montesquieu  alone. 

When  the  famous  treatise  on  The  Sjnrit  of  Laws  appeared  in 
1748,  a  treatise  belonging  to  the  small  class  of  books  which 
permanently  turn  the  course  of  human  thought,  and  which,  un- 
like St.  Augustine's  City  of  God,  turned  it  immediately  instead 
of  having  to  wait  for  centuries  till  the  hour  of  its  power  ar- 
rived, it  dwelt  upon  the  separation  of  the  executive,  legisla- 
tive, and  judicial  powers  in  the  British  Constitution  as  the 
most  remarkable  feature  of  that  system.  Accustomed  to  see 
the  two  former  powers,  and  to  some  extent  the  third  also,  ex- 
ercised by  or  under  the  direct  control  of  the  French  monarch, 
Montesquieu  attributed  English  freedom  to  their  separation.^ 
The  King  of  Great  Britain  then  possessed  a  larger  prerogative 
than  he  has  now,  and  as  even  then  it  seemed  on  paper  much 
larger  than  it  really  was,  it  was  natural  that  a  foreign  observer 
should  underrate  the  executive  character  of  the  British  Parlia- 
ment and  overrate  the  personal  authority  of  the  monarch. 
Now  Montesquieu's  treatise  was  taken  by  the  thinkers  of  the 
next  generation  as  a  sort  of  Bible  of  political  philosophy. 
Hamilton  and  Madison,  the  two  earliest  exponents  of  the 
American  Constitution  they  had  done  so  much  to  create,  cite 
it  in  the  Federalist  much  as  the  schoolmen  cite  Aristotle,  that 
is,  as  an  authority  to  which  everybody  will  bow ;  and  Madison 
in  particular  constantly  refers  to  this  separation  of  the  three 
powers  as  the  distinguishing  note  of  a  free  government. 

These  views  of  the  British  Constitution  tallied  with  and 
were  strengthened  by  the  ideas  and  habits  formed  in  the 
Americans  by  their  experience  of  representative  government  in 
the  colonies,  ideas  and  habits  which  were  after  all  the  domi- 
nant factor  in  the  construction  of  their  political  system.  In 
these  colonies  the  executive  power  had  been  vested  either  in 

President  Montesquieu,  tliough  I  trust  too  hastily,  presages  that  as  Rome, 
Sparta,  and  Carthage  have  lost  their  liberty  and  perished,  so  the  Constitution 
of  England  will  in  time  lose  its  liberty  —  will  perish:  it  will  perish  whenever 
the  legislative  power  shall  become  more  corrupt  than  the  executive." 

1  Locke  had  already  remarked  {On  Civil  Government, clm\i.x\y.)  that  "the 
legislative  and  executive  powers  are  in  distinct  hands  in  all  moderated  mon- 
archies and  well-framed  governments." 


CHAP.  XXV      AMEEICAN  AND   EUROPEAN   SYSTEMS  283 

governors  sent  from  England  by  the  Crown,  or  in  certain  Pro- 
prietors, to  whom  the  English  Crown  had  granted  hereditary 
rights  in  a  province.  Each  representative  assembly,  while  it 
made  laws  and  voted  money  for  the  purposes  of  its  respective 
commonwealth,  did  not  control  the  governor,  because  his  com- 
mission issued  from  the  British  Crown,  and  he  was  responsible 
thereto.  A  governor  had  no  parliamentary  cabinet,  but  only 
officials  responsible  to  himself  and  the  Crown.  His  veto  on 
acts  of  the  colonial  legislature  was  frequently  used ;  and  that 
body,  with  no  means  of  influencing  his  conduct  other  than  the 
refusal  to  vote  money,  was  a  legislature  and  nothing  more. 
Thus  the  Americans  found  and  admired  in  their  colonial  (or 
State)  systems,  a  separation  of  the  legislative  from  the  execu- 
tive branch,  more  complete  than  in  England  ;  and  being  already 
proud  of  their  freedom,  they  attributed  its  amplitude  chiefly  to 
this  cause. 

From  their  colonial  and  State  experience,  coupled  with  these 
notions  of  the  British  Constitution,  the  men  of  1787  drew  three 
conclusions  :  Firstly,  that  the  vesting  of  the  executive  and  the 
legislative  powers  in  different  hands  was  the  normal  and  natu- 
ral feature  of  a  free  government.  Secondly,  that  the  power 
of  the  executive  was  dangerous  to  liberty,  and  must  be  kept 
within  well-defined  boundaries.  Thirdly,  that  in  order  to 
check  the  head  of  the  state  it  was  necessary  not  only  to  define 
his  powers,  and  appoint  him  for  a  limited  period,  but  also  to 
destroy  his  opportunities  of  influencing  the  legislature.  Con- 
ceiving that  ministers,  as  named  by  and  acting  under  the  orders 
of  the  President,  would  be  his  instruments  rather  than  faithful 
representatives  of  the  people,  they  resolved  to  j)revent  them 
from  holding  this  double  character,  and  therefore  forbade 
"any  person  holding  office  under  the  United  States"  to  be  a 
member  of  either  House.^  They  deemed  that  in  this  way  they 
had  rendered  their  legislature  pure,  independent,  vigilant,  the 
servant  of  the  people,  the  foe  of  arbitrary  power.     Omnipo- 

1  In  1700  the  English  Act  of  Settlement  enacted  that  "  no  person  who  has 
an  offlce  or  a  place  of  profit  under  the  King  shall  l)e  capable  of  serving  as  a 
member  of  the  House  of  Commons."  Tliis  provision  never  took  effect,  having 
been  repealed  by  the  Act  4  Anne,  c.  8.  But  the  holding  of  the  great  majority 
of  offices  under  the  Crown  is  now,  by  statute,  a  disqualification  for  sitting  in 
the  House  of  Commons.  See  Anson,  Laio  and  Custom  of  the  Constitution, 
vol.  i.  p.  174. 


284  THE   NATIONAL   GOVEKNMENT  part  i 

tent,  however,  the  franiers  of  the  Constitution  did  not  mean  to 
make  it.  They  were  sensible  of  the  opposite  dangers  which 
might  flow  from  a  feeble  and  dependent  executive.  The  pro- 
posal made  in  the  first  draft  of  the  Constitution  that  Congress 
should  elect  the  President,  was  abandoned,  lest  he  should  be 
merely  its  creature  and  unable  to  check  it.  To  strengthen  his 
position,  and  prevent  intrigues  among  members  of  Congress  for 
this  supreme  office,  it  was  settled  that  the  people  should  them- 
selves, through  certain  electors  appointed  for  the  purpose, 
choose  the  President.  By  giving  him  the  better  status  of  a 
popular,  though  indirect,  mandate,  he  became  independent  of 
Congress,  and  was  encouraged  to  use  his  veto,  which  a  mere 
nominee  of  Congress  might  have  hesitated  to  do.  Thus  it  was 
believed  in  1787  that  a  due  balance  had  been  arrived  at,  the 
independence  of  Congress  being  secured  on  the  one  side  and 
the  independence  of  the  President  on  the  other.  Each  power 
holding  the  other  in  check,  the  people,  jealous  of  their  hardly- 
won  liberties,  would  be  courted  by  each,  and  safe  from  the  en- 
croachments of  either. 

There  was  of  course  the  risk  that  controversies  as  to  their 
respective  rights  and  powers  would  arise  between  these  two 
departments.  But  the  creation  of  a  court  entitled  to  place  an 
authoritative  interpretation  upon  the  Constitution  in  which  the 
supreme  will  of  the  people  was  expressed,  provided  a  remedy 
available  in  many,  if  not  in  all,  of  such  cases,  and  a  security 
for  the  faithful  observance  of  the  Constitution  which  England 
did  not,  and  under  her  system  of  an  omnipotent  Parliament 
could  not,  possess. 

"  They  builded  better  than  they  knew."  They  divided  the 
legislature  from  the  executive  so  completely  as  to  make  each 
not  only  independent,  but  weak  even  in  its  own  proper  sphere. 
The  President  was  debarred  from  carrying  Congress  along  with 
him,  as  a  popular  prime  minister  may  carry  Parliament  in 
England,  to  effect  some  sweeping  change.  He  is  fettered  in 
foreign  policy,  and  in  appointments,  by  the  concurrent  rights 
of  the  Senate,  He  is  forbidden  to  appeal  at  a  crisis  from  Con- 
gress to  the  country,  Nevertheless  his  office  retains  a  meas- 
ure of  solid  independence  in  the  fact  that  the  nation  regards 
him  as  a  direct  representative  and  embodiment  of  its  majesty, 
while  the  circumstance  that  he  holds  office  for  four  years  only 


CHAP.  XXV       AMERICAN   AND   EUROPEAN   SYSTEMS  285 

makes  it  possible  for  him  to  do  acts  of  power  during  those  four 
years  which  woukl  excite  alarm  from  a  permanent  sovereign. 
Entrenched  behind  the  ramparts  of  a  rigid  Constitution,  he  has 
retained  rights  of  which  his  prototype  the  English  king  has 
been  gradually  stripped.  Congress  on  the  other  hand  was 
weakened,  as  compared  with  the  British  Parliament  in  which 
one  House  has  become  dominant,  by  its  division  into  two  co- 
equal houses,  whose  disagreement  paralyzes  legislative  action. 
And  it  lost  that  direct  control  over  the  executive  which  the 
presence  of  ministers  in  the  legislature,  and  their  dependence 
upon  a  majority  of  the  popular  House,  give  to  the  Parliaments 
of  Britain  and  her  colonies.  It  has  diverged  widely  from  the 
English  original  which  it  seemed  likely,  with  only  a  slight  dif- 
ference, to  reproduce. 

The  British  House  of  Commons  has  grown  to  the  stature  of 
a  supreme  executive  as  well  as  legislative  council,  acting  not 
only  by  its  properly  legislative  power,  but  through  its  right  to 
displace  ministers  by  a  resolution  of  want  of  confidence,  and 
to  compel  the  sovereign  to  employ  such  servants  as  it  approves. 
Congress  remains  a  pure  legislature,  unable  to  displace  a  min- 
ister, unable  to  choose  the  agents  by  whom  its  laws  are  to  be 
carried  out,  and  having  hitherto  failed  to  develop  that  internal 
organization  which  a  large  assembly  needs  in  order  to  frame 
and  successfully  pursue  definite  schemes  of  policy.  Neverthe- 
less, so  far-reaching  is  the  power  of  legislation,  Congress  has 
encroached,  and  may  encroach  still  farther,  upon  the  sphere  of 
the  executive.  It  encroaches  not  merely  with  a  conscious  pur- 
pose, but  because  the  law  of  its  being  has  forced  it  to  create  in 
its  committees  bodies  whose  exj)ansion  necessarily  jiresses  on 
the  executive.  It  encroaches  because  it  is  restless,  unwearied, 
always  drawn  by  the  progress  of  events  into  new  fields  of 
labour. 

These  observations  may  suffice  to  show  why  the  Fathers  of 
the  Constitution  did  not  adopt  the  English  parliamentary  or 
Cabinet  system.  They  could  not  adopt  it  because  they  did  not 
know  of  its  existence.  They  did  not  know  of  it  because  it 
was  still  immature,  because  Englishmen  themselves  had  not 
understood  it,  because  the  recognized  authorities  did  not  men- 
tion it.  There  is  not  a  word  in  Blackstone,  much  less  in 
Montesquieu,  as  to  the  duty  of  ministers  to  resign  at  the  bid- 


286  THE   NATIONAL   GOVERNMENT  part  i 

ding  of  the  House  of  Commons,  nor  anything  to  indicate  that 
the  whole  life  of  the  House  of  Commons  was  destined  to 
centre  in  the  leadership  of  ministers.  Whether  the  Fathers 
would  have  imitated  the  cabinet  system  had  it  been  proposed 
to  them  as  a  model  may  be  doubted.  They  would  probably 
have  thought  that  the  creation  of  a  frame  of  government  so 
unified,  so  strong,  so  capable  of  swiftly  and  irresistibly  accom- 
plishing the  purposes  of  a  transitory  majority  as  we  now 
perceive  it  to  be,  might  prove  dangerous  to  those  liberties  of 
the  several  States,  as  well  as  of  individual  citizens,  which 
filled  the  whole  background  of  their  landscape.  But  as  the 
idea  never  presented  itself,  we  cannot  say  that  it  was  rejected, 
nor  cite  the  course  they  took  as  an  expression  of  their  judg- 
ment against  the  system  under  which  England  and  her  colonies 
have  so  far  prospered. 

That  system  could  not  be  deemed  to  have  reached  its  ma- 
turity till  the  power  of  the  people  at  large  had  been  established 
by  the  Reform  Act  of  1832.  For  its  essence  resides  in  the 
delicate  equipoise  it  creates  between  the  three  powers,  the 
ministry,  the  House  of  Commons,  and  the  people.  The  House 
is  strong,  because  it  can  call  the  ministry  to  account  for  every 
act,  and  can,  by  refusing  supplies,  compel  their  resignation. 
The  ministry  are  not  defenceless,  because  they  can  dissolve 
Parliament,  and  ask  the  people  to  judge  between  it  and  them. 
Parliament,  when  it  displaces  a  ministry,  does  not  strike  at 
executive  authority :  it  merely  changes  its  agents.  The  min- 
istry, when  they  dissolve  Parliament,  do  not  attack  Parlia- 
ment as  an  institution :  they  recognize  the  supremacy  of  the 
body  in  asking  the  country  to  change  the  individuals  who  com- 
pose it.  Both  the  House  of  Commons  and  the  ministry  act 
and  move  in  the  full  view  of  the  people,  who  sit  as  arbiters, 
prepared  to  judge  in  any  controversy  that  may  arise.  The 
House  is  in  touch  with  the  people,  because  every  member 
must  watch  the  lights  and  shadows  of  sentiment  which  play 
over  his  own  constituency.  The  ministry  are  in  touch  with 
the  people,  because  they  are  not  only  themselves  representa- 
tives, but  are  heads  of  a  great  party,  sensitive  to  its  feelings, 
forced  to  weigh  the  effect  of  every  act  they  do  upon  the  con- 
fidence which  their  party  places  in  them.  The  only  conjunc- 
ture which  this  system  of  "  checks  and  balances  "  does  not 


CHAi>.  XXV       AMERICAN   AND    EUROPEAN   SYSTEMS  287 


provide  for  is  that  of  a  ministry  supported  by  a  parliamentary 
majority  pursuing  a  policy  which  was  not  presented  to  the 
people  at  the  last  general  election,  and  of  Avhich  the  bulk  of 
the  people  in  fact  disapprove.^  This  is  a  real  danger,  yet  one 
which  can  seldom  last  long  enough  to  work  grave  mischief, 
for  the  organs  of  public  opinion  are  now  so  potent,  and  the 
opportunities  for  its  expression  so  numerous,  that  the  anger  of 
a  popular  majority,  perhaps  even  of  a  very  strong  minority,  is 
almost  certain  to  alarm  both  the  ministry  and  the  House,  and 
to  arrest  them  in  their  course.^ 

The  drawback  to  this  system  of  exquisite  equipoise  is  the 
liability  of  its  equilibrium  to  be  frequently  disturbed,  each  dis- 
turbance involving  either  a  change  of  government,  with  immense 
temporary  inconvenience  to  the  departments,  or  a  general  elec- 
tion, with  immense  expenditure  of  money  and  trouble  in  the 
country.  It  is  a  system  whose  successful  working  presupposes 
the  existence  of  two  great  parties  and  no  more,  parties  each 
strong  enough  to  restrain  the  violence  of  the  other,  yet  one  of 
them  steadily  preponderant  in  any  given  House  of  Commons. 
Where  a  third,  perhaps  a  fourth,  party  appears,  the  conditions 
are  changed.  .The  scales  of  Parliament  oscillate  as  the  weight 
of  this  detached  group  is  thrown  on  one  side  or  the  other ;  dis- 
solutions become  more  frequent,  and  even  dissolutions  may  fail 
to  restore  stability.  The  recent  history  of  the  French  Kepublic 
has  shown  the  difficulties  of  working  a  Chamber  composed 
of  groups:  nor  is  the  same  source  of  difficulty  unknown  in 
England. 

It  is  worth  while  to  compare  the  form  which  a  constitutional 
struggle  takes  under  the  Cabinet  system  and  under  that  of 
America. 

In  England,  if  the  executive  ministry  displeases  the  House 

1  The  recent  leading  case  on  this  subject  is  that  of  Lord  Beaconsfield's  Gov- 
ernment from  187G  till  1880. 

2  "The  dangers  arising  from  a  party  spirit  in  Parliament  exceeding  that  of 
the  nation,  and  of  a  selfishness  in  Parliament  contradicting  the  true  interest  of 
the  nation,  are  not  great  dangers  in  a  country  where  the  mind  of  the  nation  is 
steadily  political,  and  where  its  control  over  its  representatives  is  constant. 
A  steady  opposition  to  a  formed  puhlic  opinion  is  hardly  possible  in  our  House 
of  Commons,  so  incessant  is  the  national  attention  to  politics,  and  so  keen  the 
fear  in  the  mind  of  each  member  that  he  may  lose  his  valued  seat."  —  Walter 
Bagehot,  English  Constituiion,  p.  241.  These  remarks  of  the  most  acute  of 
English  political  writers  are  even  more  true  now  than  they  were  in  1872. 


THE   NATIONAL   GOVERNMENT 


of  Commons,  the  House  passes  an  adverse  vote.  The  ministry 
have  their  choice  to  resign  or  dissolve  Parliament.  If  they 
resign,  a  neAV  ministry  is  appointed  from  the  party  which  has 
proved  itself  strongest  in  the  House  of  Commons ;  and  co-oper- 
ation being  restored  between  the  legislature  and  the  executive, 
public  business  proceeds.  If,  on  the  other  hand,  the  ministry 
dissolve  Parliament,  a  new  Parliament  is  sent  up  which,  if 
favourable  to  the  existing  cabinet,  keeps  them  in  office,  if  un- 
favourable, dismisses  them  forthwith.^  Accord  is  in  either 
case  restored.  Should  the  difference  arise  between  the  House 
of  Lords  and  a  ministry  supported  by  the  House  of  Commons, 
and  the  former  persist  in  rejecting  a  bill  which  the  Commons 
send  up,  a  dissolution  is  the  usual  remedy ;  and  if  the  newly- 
elected  House  of  Commons  reasserts  the  view  of  its  predecessor, 
the  Lords,  according  to  the  now  recognized  constitutional  prac- 
tice, yield  at  once.  Should  they,  however,  still  stand  out,  there 
remains  the  extreme  expedient,  threatened  in  1832,  but  never 
yet  resorted  to,  of  a  creation  by  the  sovereign  (i.e.  the  ministry) 
of  new  peers  sufficient  to  turn  the  balance  of  votes  in  the  Upper 
House.  Practically  the  ultimate  decision  always  rests  with  the 
people,  that  is  to  say,  with  the  party  which  for  the  moment 
commands  a  majority  of  electoral  votes.  This  method  of 
cutting  knots  applies  to  all  differences  that  can  arise  between 
executive  and  legislature.  It  is  a  swift  and  effective  method; 
in  this  swiftness  and  effectiveness  lie  its  dangers  as  well  as  its 
merits. 

In  America  a  dispute  between  the  President  and  Congress 
may  arise  over  an  executive  act  or  over  a  bill.  If  over  an 
executive  act,  an  appointment  or  a  treaty,  one  branch  of  Con- 
gress, the  Senate,  can  check  the  President,  that  is,  can  prevent 
him  from  doing  what  he  wishes,  but  cannot  make  him  do  what 
they  wish.  If  over  a  bill  which  the  President  has  returned  to 
Congress  unsigned,  the  two  Houses  can,  by  a  two-thirds  majority, 
pass  it  over  his  veto,  and  so  end  the  quarrel ;  though  the  carry- 

1  Recent  instances,  clatinp;  from  Mr.  Disraeli's  resignation  in  December 
1868,  when  the  results  of  the  election  of  that  year  were  ascertained,  have 
established  the  usage  that  a  ministry  quits  otRce,  without  waiting  to  be  turned 
out,  when  they  know  that  the  election  has  given  a  decisive  majority  to  the  oppo- 
sition. The  precedent  was  followed  in  1874, 1880,  and  1880,  but  not  in  1885  and 
1892,  wlien  the  "  regular"'  Opposition  had  not  an  absolute  majority,  though  the 
ministry  was  l>eaten.    The  usage,  however,  is  not  yet  a  rule  of  the  Constitution. 


CHAP.  XXV      AMERICAN   AND   EUROPEAN   SYSTEMS  289 

ing  out  of  the  bill  in  its  details  must  be  left  to  him  and  his 
ministers,  whose  dislike  of  it  may  render  them  unwilling  and 
therefore  unsuitable  agents.  Should  there  not  be  a  two-thirds 
majority,  the  bill  drops ;  and  however  important  the  question 
may  be,  however  essential  to  the  country  some  prompt  dealing 
with  it,  either  in  the  sense  desired  by  the  majority  of  Congress 
or  in  that  preferred  by  the  President,  nothing  can  be  done  till 
the  current  term  of  Congress  expires.  The  matter  is  then 
remitted  to  the  people.  If  the  President  has  still  two  more 
years  in  office,  the  people  may  signify  their  approval  of  his 
policy  by  electing  a  House  in  political  agreement  with  him,  or 
disapprove  it  by  re-electing  a  hostile  House.  If  the  election 
of  a  new  President  coincides  with  that  of  the  new  House,  the 
people  have  a  second  means  provided  of  expressing  their  judg- 
ment. They  may  choose  not  only  a  House  of  the  same  or  an 
opposite  complexion  to  the  last,  but  a  President  of  the  same 
or  an  opposite  complexion.  Anyhow  they  can  now  establish 
accord  between  one  House  of  Congress  and  the  executive.^  The 
Senate,  however,  may  still  remain  opposed  to  the  President, 
and  may  not  be  brought  into  harmony  with  him  until  a  suffi- 
cient time  has  elapsed  for  the  majority  in  it  to  be  changed  by 
the  choice  of  new  senators  by  the  State  legislatures.  This  is  a 
slower  method  than  that  of  Britain.  It  may  fail  in  a  crisis 
needing  immediate  action ;  but  it  escapes  the  danger  of  a  hur- 
ried and  perhaps  irrevocable  decision. 

Englishmen  deem  it  a  merit  in  their  system  that  the  prac- 
tical execvitive  of  the  country  is  directly  responsible  to  the 
House  of  Commons.  In  the  United  States,  however,  not  only 
in  the  national  government,  but  in  every  one  of  the  States,  the 
opposite  doctrine  prevails  —  that  the  executive  should  be  wholly 
independent  of  the  legislative  branch.  Americans  understand 
that  this  scheme  involves  a  loss  of  power  and  efficiency,  but 
they  believe  that  it  makes  greatly  for  safety  in  a  popular  gov- 

1  It  is  of  course  possible  that  tlie  people  may  elect  at  the  same  time  a 
President  belonging  to  one  party  and  a  House  the  majority  whereof  belongs 
to  the  other  party.  This  happened  in  1848,  and  again  in  1876,  when,  however, 
the  presidential  election  was  disputed.  It  is  rendered  possiljle  by  the  fact  that 
the  President  is  elected  on  a  different  plan  from  the  House,  the  smaller  States 
having  relatively  more  weight  in  a  presidential  election,  and  the  presidential 
electors  being  now  chosen,  in  nearly  every  State,  by  "general  ticket,"  not  in 
districts. 

VOL.  I  U 


290  THE   NATIONAL   GOVERNMENT  pakt  i 

ernment.  They  expect  the  executive  and  the  legislature  to 
work  together  as  well  as  they  can,  and  public  opinion  does 
usually  compel  a  degree  of  co-operation  and  efficiency  which 
perhaps  could  not  be  expected  theoretically.  It  is  an  interest- 
ing commentary  on  the  tendencies  of  democratic  government, 
that  in  America  reliance  is  coming  to  be  placed  more  and 
more,  in  the  nation,  in  the  State,  and  in  the  city,  upon  the 
veto  of  the  Executive  as  a  protection  to  the  community  against 
the  legislative  branch.  Weak  Executives  frequently  do  harm, 
but  a  strong  Executive  has  rarely  abused  popular  confidence. 
On  the  other  hand,  instances  where  the  Executive,  by  the  use 
of  his  veto  power,  has  arrested  mischiefs  due  to  the  action  of 
the  legislature  are  by  no  means  rare.  This  circumstance  leads 
some  Americans  to  believe  that  the  day  is  not  far  distant  when 
in  England  some  sort  of  veto  power,  or  other  constitutional 
safeguard,  must  be  interposed  to  protect  the  people  against  a 
hasty  decision  of  their  representatives. 

While  some  bid  England  borrow  from  her  daughter,  other 
Americans  conceive  that  the  separation  of  the  legislature  from 
the  executive  has  been  carried  too  far  in  the  United  States, 
and  suggest  that  it  would  be  an  improvement  if  the  ministers 
of  the  President  were  permitted  to  appear  in  both  Houses  of 
Congress  to  answer  questions,  perhaps  even  to  join  in  debate. 
I  have  no  space  to  discuss  the  merits  of  this  proposal,  which 
no  doubt  derives  support  from  the  "particularistic"  tendencies 
of  Congress,  in  which  there  is  no  group  of  persons  bound,  like 
a  British  ministry,  to  maintain  the  interests  of  the  country  as  a 
whole.  But  I  must  observe  that  it  might  lead  to  changes  more 
extensive  than  its  advocates  seem  to  contemplate.  The  more 
the  President's  ministers  come  into  contact  with  Congress,  the 
more  difficult  will  it  be  to  maintain  the  independence  of  Con- 
gress which  he  and  they  now  possess.  When  not  long  ago  the 
Norwegian  Stor  Thing  forced  the  King  of  Sweden  and  Norway 
to  consent  to  his  ministers  appearing  in  that  legislature,  the 
king,  perceiving  the  import  of  the  concession,  resolved  to 
choose  in  future  ministers  in  accord  with  the  party  holding  a 
majority  in  the  Stor  Thing.  It  is  hard  to  say,  when  one  be- 
gins to  make  alterations  in  an  old  house,  how  far  one  will  be 
led  on  in  rebuilding,  and  I  doubt  whether  this  change  in  the 
present  American  system,  possibly  in  itself  desirable,  might 


CHAP.  XXV       AMERICAN   AND   EUROPEAN   SYSTEMS  291 

not  be  found  to  involve  a  reconstruction  large  enough  to  put  a 
new  face  upon  several  jjarts  of  that  system. 

In  the  history  of  the  United  States  there  have  been  four 
serious  conflicts  between  the  legislature  and  the  executive. 
The  first  was  that  between  President  Jackson  and  Congress. 
It  ended  in  Jackson's  favour,  for  he  got  his  way ;  but  he  pre- 
vailed because  during  the  time  when  both  Houses  were  against 
him,  his  opponents  had  not  a  two-thirds  majority.  In  the  lat- 
ter part  of  the  struggle  the  (re-elected)  House  was  with  him ; 
and  before  he  had  quitted  office  his  friends  obtained  a  majority 
in  the  always-changing  Senate.  But  his  success  was  not  so 
much  the  success  of  the  executive  office  as  of  a  particular  Pres- 
ident popular  with  the  masses.  The  second  contest,  which  was 
between  President  Tyler  and  both  Houses  of  Congress,  was  a 
drawn  battle,  because  the  majority  in  the  Houses  fell  short 
of  two-thirds.  In  the  third,  between  President  Johnson  and 
Congress,  Congress  prevailed;  the  enemies  of  the  President 
having,  owing  to  the  disfranchisement  of  most  Southern  States, 
an  overpowering  majority  in  both  Houses,  and  by  that  majority 
carrying  over  his  veto  a  series  of  Acts  so  peremptory  that  even 
his  reluctance  to  obey  them  could  not  destroy,  though  it  some- 
times marred,  their  efficiency.  In  the  fourth  case,  referred  to 
in  a  previous  chapter,  the  victory  remained  with  the  President, 
because  the  Congressional  majority  against  him  was  slender. 
But  a  presidential  victory  is  usually  a  negative  victory.  It 
consists  not  in  his  getting  what  he  wants,  but  in  his  prevent- 
ing Congress  from  getting  what  it  wants.^  The  practical  re- 
sult of  the  American  arrangements  thus  comes  to  be  that  when 
one  party  possesses  a  large  majority  in  Congress  it  can  over- 
power the  President,  taking  from  him  all  but  a  few  strictly 
reserved  functions,  such  as  those  of  pardoning,  of  making  pro- 
motions in  the  army  and  navy,  and  of  negotiating  (not  of  con- 
cluding treaties,  for  these  require  the  assent  of  the  Senate) 
with  foreign  states.  Where  parties  are  pretty  equally  divided, 
i.e.  when  the  majority  is  one  way  in  the  Senate,  the  other  way 
in  the  House,  or  when  there  is  only  a  small  majority  against 

1  In  the  famous  case  of  President  .lackson's  removal  of  the  government 
deposits  of  money  from  the  United  States  Bank,  the  President  did  accomplish 
his  object.  Biit  this  was  a  very  exceptional  case,  being  one  which  had  remained 
within  the  executive  discretion  of  the  President,  siuce  no  statute  had  happened 
to  provide  for  it. 


292  THE   NATIONAL   GOVERNMENT  '  part  i 

the  President  in  both  Houses,  the  President  is  in  so  far  free 
that  new  fetters  cannot  be  laid  upon  him ;  but  he  must  move 
under  those  which  previous  legislation  has  imposed,  and  can 
take  no  step  for  which  new  legislation  is  needed. 

It  is  another  and  a  remarkable  consequence  of  the  absence  of 
cabinet  government  in  America,  that  there  is  also  no  party 
government  in  the  European  sense.  Party  government  in 
France,  Italy,  and  England  means,  that  one  set  of  men,  united, 
or  professing  to  be  united,  by  holding  one  set  of  opinions,  have 
obtained  control  of  the  whole  machinery  of  government,  and 
are  working  it  in  conformity  with  those  opinions.  Their 
majority  in  the  country  is  represented  by  a  majority  in  the 
legislature,  and  to  this  majority  the  ministry  of  necessity 
belongs.  The  ministry  is  the  supreme  committee  of  the 
party,  and  controls  all  the  foreign  as  well  as  domestic  affairs 
of  the  nation,  because  the  majority  is  deemed  to  be  the 
nation.  It  is  otherwise  in  America.  Men  do,  no  doubt,  talk 
of  one  party  as  being  "in  power,"  meaning  thereby  the  party  to 
which  the  then  President  belongs.  But  they  do  so  because 
that  party  enjoys  the  spoils  of  office,  in  which  to  so  many  poli- 
ticians the  value  of  power  consists.  They  do  so  also  because 
in  the  early  days  the  party  which  prevailed  in  the  legislative 
usually  prevailed  also  in  the  executive  department,  and  because 
the  presidential  election  was,  and  still  is,  the  main  struggle 
which  proclaimed  the  predominance  of  one  or  other  party.^ 

But  the  Americans,  when  they  speak  of  the  Administration 
party  as  the  party  in  power,  have,  in  borrowing  an  English 
phrase,  applied  it  to  utterly  different  facts.  Their  "  party  in 
power  "  need  have  no  '•'  power  "  beyond  that  of  securing  places 
for  its  adherents.  It  may  be  in  a  minority  in  one  House  of 
Congress,  in  which  event  it  accomplishes  nothing,  but  can  at 
most  merely  arrest  adverse  legislation,  or  in  a  small  minority 
in  both  Houses  of  Congress,  in  which  event  it  must  submit  to 
see  many  things  done  which  it  dislikes.  And  if  its  enemies 
control    the    Senate,    even    its   executive   arm   is   paralyzed. 

*  The  history  of  the  Repulilic  divides  itself  in  the  mind  of  most  Americans 
into  a  succession  of  Presidents  and  Administrations,  just  as  old-fashioned  his- 
torians divided  the  history  of  England  hy  the  reigns  of  kings,  a  tolerable  way 
of  reckoning  in  the  days  of  Edward  the  Third  and  Richard  the  Second,  when 
the  personal  gifts  of  the  sovereign  were  a  chief  factor  in  affairs,  but  absurd  in 
the  days  of  George  the  Fourth  and  William  the  Fouilh. 


CHAP.  XXV       AMEEICAN  AND  EUROPEAN   SYSTEMS  293 

Though  party  feeling  has  generally  been  stronger  in  America 
than  in  England,  and  even  now  covers  a  larger  proportion  of 
the  voters,  and  enforces  a  stricter  discipline,  party  government 
is  distinctly  weaker. 

Those  who  lament  the  violence  of  European  factions  may 
fancy  America  an  Elysium  where  legislation  is  just  and  reason- 
able, because  free  from  bias,  where  pure  and  enlarged  views  of 
national  interest  override  the  selhsli  designs  of  politicians.  It 
would  be  nearer  the  truth  to  say  that  the  absence  of  party 
control  operates  chiefly  to  make  laws  less  consistent,  and  to 
prevent  extended  schemes  of  policy  from  being  framed,  because 
the  chance  of  giving  continuous  effect  to  them  is  small.  The 
natural  history  of  the  party  system,  and  of  the  methods 
whereby  it  is  worked,  belongs  to  a  later  part  of  this  book. 
The  system  is  complete,  the  methods  are  elaborate,  but  the 
Constitution  opposes  obstacles  unknown  in  France  or  England 
to  the  complete  control  by  a  party  of  the  whole  government  of 
the  country. 

We  are  now  in  a  position  to  sum  up  the  practical  results 
of  the  scheme  which  purports  to  separate  Congress  from  the 
executive,  instead  of  uniting  them  as  they  are  united  under  a 
cabinet  government.  I  say  "  purports  to  separate,"  because  it 
is  plain  that  the  separation,  significant  as  it  is,  is  less  com- 
plete than  current  language  imports,  or  than  the  Fathers  of 
the  Constitution  would  seem  to  have  intended.  The  necessary 
coherence  of  the  two  powers  baffled  them.  These  results  are 
five :  — 

The  President  and  his  ministers  have  no  initiative  in  Con- 
gress, little  influence  over  Congress,  except  what  they 
can  exert  upon  individual  members,  through  the  be- 
stowal of  patronage. 
Congress  has,  together  with  unlimited  powers  of  inquiry, 
imperfect  powers  of  control  over  the  administrative 
departments. 
The  nation  does  not  always  know  how  or  where  to  fix  re- 
sponsibility for  misfeasance  or  neglect.  The  person  and 
bodies  concerned  in  making  and  executing  the  laws  are 
so  related  to  one  another  that  each  can  generally  shift 
the  burden  of  blame  on  some  one  else,  and  no  one  acts 
under  the  full  sense  of  direct  accountability. 


294  THE  NATIONAL  GOVERNMENT  part  i 

There  is  a  loss  of  force  by  friction  — i.e.  part  of  the  energy, 
force,  and  time  of  the  men  and  bodies  that  make  up  the 
government  is  dissipated  in  struggles  with  one  another. 
This  belongs  to  all  free  governments,  because  all  free 
governments  rely  upon  checks.  But  the  more  checks, 
the  more  friction. 
There  is  a  risk  that  executive  vigour  and  promptitude  may 

be  found  wanting  at  critical  moments. 
We  may  include  these  defects  in  one  general  expression. 
There  is  in  the  American  government,  considered  as  a  whole,  a 
want  of  unity.  Its  branches  are  unconnected ;  their  efforts  are 
not  directed  to  one  aim,  do  not  produce  one  harmonious  result. 
The  sailors,  the  helmsman,  the  engineer,  do  not  seem  to  have 
one  purpose  or  obey  one  will,  so  that  instead  of  making  steady 
way  the  vessel  may  pursue  a  deviovis  or  zigzag  course,  and 
sometimes  merely  turn  round  and  round  in  the  water.  The 
more  closely  any  one  watches  from  year  to  year  the  history  of 
free  governments,  and  himself  swims  in  the  deep-eddying  time 
current,  the  more  does  he  feel  that  current's  force,  so  that  hu- 
man foresight  and  purpose  seem  to  count  for  little,  and  minis- 
ters and  parliaments  to  be  swept  along  they  know  not  whither 
by  some  overmastering  fate  or  overruling  providence.  But 
this  feeling  is  stronger  in  America  than  in  Europe,  because  in 
America  such  powers  as  exist  act  with  little  concert  and  resign 
themselves  to  a  conscious  impotence.  Clouds  arise,  blot  out 
the  sun  overhead,  and  burst  in  a  tempest ;  the  tempest  passes, 
and  leaves  the  blue  above  bright  as  before,  but  at  the  same  mo- 
ment other  clouds  are  already  beginning  to  peer  over  the  horizon. 
Parties  are  formed  and  dissolved,  compromises  are  settled  and 
assailed  and  violated,  wars  break  out  and  are  fought  through 
and  forgotten,  new  problems  begin  to  show  themselves,  and 
the  civil  powers,  Presidents,  and  Cabinets,  and  State  govern- 
ments, and  Houses  of  Congress,  seem  to  have  as  little  to  do 
with  all  these  changes,  as  little  ability  to  foresee  or  avert  or 
resist  them,  as  the  farmer,  who  sees  approaching  the  tornado 
which  will  uproot  his  crop,  has  power  to  stay  its  devastating 
course. 

A  President  can  do  little,  for  he  does  not  lead  either  Congress 
or  the  nation.  Congress  cannot  guide  or  stimulate  the  Presi- 
dent, nor  replace  him  by  a  man  fitter  for  the  emergency.     The 


CHAP.  XXV      AMERICAN  AND   EUROPEAN  SYSTEMS  296 


Cabinet  neither  receive  a  policy  from  Congress  nor  give  one  to 
it.  Each  poAver  in  the  state  goes  its  own  way,  or  wastes  pre- 
cious moments  in  discussing  which  way  it  shall  go,  and  that 
which  comes  to  pass  seems  to  be  a  result  not  of  the  action  of 
the  legal  organs  of  the  state,  but  of  some  larger  force  which 
at  one  time  uses  their  discord  as  its  means,  at  another  neglects 
them  altogether.  This  at  least  is  the  impression  which  the 
history  of  the  greatest  problem  and  greatest  struggle  that 
America  has  seen,  the  struggle  of  the  slaveholders  against  the 
Free  Soil  and  Union  party,  culminating  in  the  war  of  the  rebel- 
lion, makes  upon  one  who  looking  back  on  its  events  sees  them 
all  as  parts  of  one  drama.  Inevitable  the  struggle  may  have 
been ;  and  in  its  later  stages  passion  had  grown  so  hot,  and  the 
claims  of  the  slaveholders  so  extravagant,  that  possibly  under 
no  scheme  of  government  —  so  some  high  American  authorities 
hold  —  could  a  peaceful  solution  have  been  looked  for.  Yet 
it  must  be  remembered  that  the  carefully  devised  machinery  of 
the  Constitution  did  little  to  solve  that  problem  or  avert  that 
struggle,  while  the  system  of  divided  and  balanced  and  limited 
powers,  giving  every  advantage  to  those  who  stood  by  the  ex- 
isting law,  and  placing  the  rights  of  the  States  behind  the 
bulwarks  of  an  almost  unalterable  instrument,  may  have  tended 
to  aggravate  the  spirit  of  uncompromising  resistance.  The  na- 
tion asserted  itself  at  last,  but  not  till  the  resources  which  the 
Constitution  provided  for  the  attainment  of  a  peaceful  solution 
had  irretrievably  failed. 

Not  wholly  dissimilar  was  the  course  of  events  in  the  first 
years  of  the  French  Eevolution.  The  Constitution  framed  by 
the  National  Assembly  in  1791  so  limited  the  functions  and  au- 
thority of  each  power  in  the  state  that  no  one  person,  no  one 
body,  was  capable  of  leading  either  the  nation  or  the  legisla- 
ture, or  of  framing  and  maintaining  a  constructive  policy. 
Things  were  left  to  take  their  own  course.  The  boat  drifted 
to  the  rapids,  and  the  rapids  hurried  her  over  the  precipice.^ 

This  want  of  unity  is  painfully  felt  in  a  crisis.  When  a 
sudden  crisis  comes  upon  a  free  state,  the  executive  needs  two 

1  This  Constitution  of  1791  was  framed  under  the  same  idea  of  the  need  for 
separating  the  executive  and  legislative  departments  which  prevailed  at  Phila- 
delphia in  1787.  For  want  of  a  legitimate  supreme  power,  power  at  last  fell 
into  the  hands  of  the  Committee  of  Public  Safety,  and  afterwards  of  the 
Directory. 


296  THE   NATIONAL    GOVERNMENT 


things,  a  large  command  of  money  and  powers  in  excess  of 
those  allowed  at  ordinary  times.  Under  the  European  system 
the  duty  of  meeting  such  a  crisis  is  felt  to  devolve  as  much  on 
the  representative  Chamber  as  on  the  ministers  who  are  its 
agents.  The  Chamber  is  therefore  at  once  appealed  to  for 
supplies,  and  for  such  legislation  as  the  occasion  demands. 
When  these  have  been  given,  the  ministry  moves  on  with  the 
weight  of  the  people  behind  it;  and  as  it  is  accustomed  to 
work  at  all  times  with  the  Chamber,  and  the  Chamber  with  it, 
the  piston  plays  smoothly  and  quickly  in  the  cylinder.  In 
America  the  President  has  at  ordinary  times  little  to  do  with 
Congress,  while  Congress  is  unaccustomed  to  deal  with  execu- 
tive questions.  Its  machinery,  and  especially  the  absence  of 
ministerial  leaders  and  consequent  want  of  organization,  unfit 
it  for  promptly  confronting  practical  troubles.  It  is  apt  to 
be  sparing  of  supplies,  and  of  that  confidence  which  doubles 
the  value  of  supplies.  Jealousies  of  the  executive,  which  are 
proper  in  quiet  times  and  natural  towards  those  with  whom 
Congress  has  little  direct  intercourse,  may  now  be  perilous,  yet 
how  is  Congress  to  trust  persons  not  members  of  its  own  body 
nor  directly  amenable  to  its  control  ?  When  dangers  thicken 
the  only  device  may  be  the  Eoman  one  of  a  temporary  dictator- 
ship. Something  like  this  happened  in  the  War  of  Secession, 
for  the  powers  then  conferred  upon  President  Lincoln,  or  exer- 
cised without  Congressional  censure  by  him,  were  almost  as 
much  in  excess  of  those  enjoyed  under  the  ordinary  law  as 
the  authority  of  a  Eoman  dictator  exceeded  that  of  a  Roman 
consul.^  Fortunately  the  habits  of  legality,  which  lie  deep  in 
the  American  as  they  did  in  the  Roman  people,  reasserted 
themselves  after  the  war  was  over,  as  they  were  wont  to  do  at 
Rome  in  her  earlier  and  better  days.  When  the  squall  had 
passed  the  ship  righted,  and  she  has  pursued  her  subsequent 
course  on  as  even  a  keel  as  before. 

The  defects  of  the  tools  are  the  glory  of  the  workman.  The 
more  completely  self-acting  is  the  machine,  the  smaller  is 
the  intelligence  needed  to  work  it;  the  more  liable  it  is  to 
derangement,  so  much  greater  must  be  the  skill  and  care 
applied   by  one   who   tends   it.      The   English   Constitution, 

1  For  Lincoln's  argument  respecting  his  use  of  extraordinary  powers,  see 
note  to  Chapter  XXXIV.  post. 


CHAP.  XXV       AMERICAN   AND   EUROrEAN   SYSTEMS  297 

wliich  we  admire  as  a  masterpiece  of  delicate  equipoises  and 
complicated  mechanism,  would  anywhere  but  in  England  be 
full  of  difficulties  and  dangers.  It  stands  and  prospers  in 
virtue  of  the  traditions  that  still  live  among  English  states- 
men and  the  reverence  that  has  ruled  English  citizens.  It 
works  by  a  body  of  understandings  which  no  writer  can 
formulate,  and  of  habits  which  centuries  have  been  needed 
to  instil.  So  the  American  people  have  a  practical  aptitude 
for  politics,  a  clearness  of  vision  and  capacity  for  self-control 
never  equalled  by  any  other  nation.  In  1861  they  brushed 
aside  their  darling  legalities,  allowed  the  executive  to  exert 
novel  powers,  passed  lightly  laws  whose  constitutionality 
remains  doubtful,  raised  an  enormous  army,  and  contracted 
a  prodigious  debt.  Romans  could  not  have  been  more  ener- 
getic in  their  sense  of  civic  duty,  nor  more  trustful  to  their 
magistrates.  When  the  emergency  had  passed  away  the 
torrent  which  had  overspread  the  plain  fell  back  at  once  into  its 
safe  and  well-worn  channel.  The  reign  of  legality  returned ; 
and  only  four  years  after  the  power  of  the  executive  had 
reached  its  highest  point  in  the  hands  of  President  Lincoln, 
it  was  reduced  to  its  lowest  point  in  those  of  President 
Johnson.  Such  a  people  can  work  any  Constitution.  The 
danger  for  them  is  that  this  reliance  on  their  skill  and  their 
star  may  make  them  heedless  of  the  faults  of  their  political 
machinery,  slow  to  devise  improvements  which  are  best  ap- 
plied in  quiet  times. 


CHAPTER   XXVI 

GENERAL    OBSERVATIONS    ON    THE    FRAME    OF    NATIONAL 

GOVERNMENT 

The  account  which  has  been  so  far  given  of  the  working 
of  the  American  Government  has  been  necessarily  an  account 
rather  of  its  mechanism  than  of  its  spirit.  Its  practical 
character,  its  temper  and  colour,  so  to  speak,  largely  depend 
on  the  party  system  by  which  it  is  worked,  and  on  what  may 
be  called  the  political  habits  of  the  people.  These  will  be 
described  in  later  chapters.  Here,  however,  before  quitting 
the  study  of  the  constitutional  organs  of  government,  it  is 
well  to  sum  up  the  criticisms  we  have  been  led  to  make, 
and  to  add  a  few  remarks,  for  which  no  fitting  place  could 
be  found  in  preceding  chapters,  on  the  general  features  of 
the  national  government. 

I.  No  part  of  the  Constitution  cost  its  framers  so  much 
time  and  trouble  as  the  method  of  choosing  the  President. 
They  saw  the  evils  of  a  popular  vote.  They  saw  also  the 
objections  to  placing  in  the  hands  of  Congress  the  election 
of  a  person  whose  chief  duty  it  was  to  hold  Congress  in  check. 
The  plan  of  having  him  selected  by  judicious  persons,  specially 
chosen  by  the  people  for  that  purpose,  seemed  to  meet  both 
difficulties,  and  was  therefore  recommended  with  confidence. 
The  presidential  electors  have,  however,  turned  out  mere 
cyphers,  and  the  President  is  practically  chosen  by  the  people 
at  large.  The  only  importance  which  the  elaborate  machin- 
ery provided  in  the  Constitution  retains,  is  that  it  prevents 
a  simple  popular  vote  in  which  the  majority  of  the  nation 
should  prevail,  and  makes  the  issue  of  the  election  turn  on  the 
voting  in  certain  "pivotal"  States. 

II.  The  choice  of  the  President,  by  what  is  now  practically 
a  simultaneous  popular  vote,  not  only  involves  once  in  every 

298 


CH.  XXVI     REFLECTIONS  ON  FRAME  OF  GOVERNMENT  299 

four  years  a  tremendous  expenditure  of  energy,  time,  and 
money,  but  induces  of  necessity  a  crisis  which,  if  it  happens 
to  coincide  with  any  passion  powerfully  agitating  the  people, 
may  be  dangerous  to  the  commonwealth. 

III.  There  is  always  a  risk  that  the  result  of  a  presidential 
election  may  be  doubtful  or  disputed  on  the  ground  of  error, 
fraud,  or  violence.  When  such  a  case  arises,  the  difficulty  of 
finding  an  authority  competent  to  deal  with  it,  and  likely  to 
be  trusted,  is  extreme.  Moreover,  the  question  may  not  be 
settled  until  the  pre-existing  executive  has,  by  effluxion  of 
time,  ceased  to  have  a  right  to  the  obedience  of  the  citizens. 
The  experience  of  the  election  of  1876  illustrates  these  dan- 
gers. Such  a  risk  of  interregna  is  incidental  to  all  systems, 
monarchic  or  republican,  Avhicli  make  the  executive  head 
elective,  as  witness  the  Romano-Germanic  Empire  of  the 
Middle  Ages,  and  the  Papacy.  But  it  is  more  serious  where 
he  is  elected  by  the  people  than  where,  as  in  France  or 
Switzerland,  he  is  chosen  by  the  Chambers.^ 

IV.  The  change  of  the  higher  executive  officers,  and  of 
many  of  the  lower  executive  officers  also,  which  usually  takes 
place  once  in  four  years,  gives  a  jerk  to  the  machinery,  and 
causes  a  discontinuity  of  policy,  unless,  of  course,  the  Presi- 
dent has  served  only  one  term,  and  is  re-elected.  Moreover, 
there  is  generally  a  loss  either  of  responsibility  or  of  efficiency 
in  the  executive  chief  magistrate  during  the  last  part  of  his 
term.  An  outgoing  President  may  possibly  be  a  reckless 
President,  because  he  has  little  to  lose  by  misconduct,  little 
to  hope  from  good  conduct.  He  may  therefore  abuse  his 
patronage,  or  gratify  his  whims  with  impunity.  But  more 
often  he  is  a  weak  President.-  He  has  little  influence  with 
Congress,  because  his  patronage  will  soon  come  to  an  end, 
little   hold   on   the   people,  who   are   already  speculating   on 

1  In  Switzerland  the  Federal  Council  of  seven  are  elected  by  the  two  Cham- 
bers, and  then  elect  one  of  their  own  number  to  be  their  President,  and  there- 
with also  President  of  the  Confederation  (Constit.  of  187i,  art.  98) .  In  some 
British  colonies  it  has  been  jDrovided  that,  in  case  of  the  absence  or  death  or 
incapacity  of  the  Governor,  the  Chief  Justice  shall  act  as  Governor.  In  India 
the  senior  member  of  Council  acts  in  similar  cases  for  the  Viceroy. 

-  A  British  House  of  Commons  in  the  last  few  months  before  its  impending 
dissolution  usually  presents  the  same  alternations  of  reckless  electioneering 
and  of  a  feebleness  which  recoils  from  any  momentous  decision. 


300  THE   NATIONAL   GOVERNMENT 


the  policy  of  his  successor.  His  secretary  of  state  cannot 
treat  boldly  with  foreign  powers,  who  perceive  that  he  has  a 
diminished  influence  in  the  Senate,  and  know  that  the  next 
secretary  may  have  different  views. 

The  question  whether  the  United  States,  which  no  doubt 
needed  a  President  in  1789  to  typify  the  then  created  political 
unity  of  the  nation,  might  not  now  dispense  with  one,  has 
never  been  raised  in  America,  where  the  people,  though  dissat- 
isfied with  the  method  of  choice,  value  the  office  because  it  is 
independent  of  Congress  and  directly  responsible  to  the 
people.  Americans  condemn  any  plan  under  which,  as  lately 
befel  in  France,  the  legislature  can  drive  a  President  from 
power  and  itself  proceed  to  choose  a  new  one.^ 

V.  The  Vice-President's  office  is  ill-conceived.  His  only 
ordinary  function  is  to  act  as  Chairman  of  the  Senate,  but  as 
he  does  not  appoint  the  Committees  of  that  House,  aud  has  not 
even  a  vote  (except  a  casting  vote)  in  it,  this  function  is  of 
little  moment.  If,  however,  the  President  dies,  or  becomes 
incapable  of  acting,  or  is  removed  from  office,  the  Vice-Presi- 
dent succeeds  to  the  Presidency.  What  is  the  result  ?  The 
place  being  in  itself  unimportant,  the  choice  of  a  candidate  for 
it  excites  little  interest,  and  is  chiefly  used  by  the  party  man- 
agers as  a  means  of  conciliating  a  section  of  their  party.  It 
becomes  what  is  called  "  a  complimentary  nomination."  The 
man  elected  Vice-President  is  therefore  never  a  man  in  the 
front  rank.  But  when  the  President  dies  during  his  term  of 
office,  which  has  happened  to  four  out  of  the  eighteen  Presi- 
dents, this  second-class  man  steps  into  a  great  place  for  which 
he  was  never  intended.  Sometimes,  as  in  the  case  of  Mr. 
Arthur,  he  fills  the  place  respectably.  Sometimes,  as  in  that 
of  Andrew  Johnson,  he  throws  the  country  into  confusion. 

He  is  aut  mdlus  aid  Ccesar. 

VI.  The  defects  in  the  structure  and  working  of  Congress, 
and  in  its  relations  to  the  executive,  have  been  so  fully  dwelt 
on  already  that  it  is  enough  to  refer  summarily  to  them.  They 
are  — 

The  discontinuity  of  Congressional  policy. 
The  want  of  adequate  control  over  officials, 

1  The  question  of  replacing  tlie  President  by  a  ministerial  council  is  very 
rarely  discussed  in  America.     It  lias  recently  been  mooted  in  France. 


CH.  XXVI     REFLECTIONS  ON  FRAME  OF  GOVERNMENT  301 

The  want  of  opportunities  for  the  executive  to  influence  the 
legislature. 

The  want  of  any  authority  charged  to  secure  the  passing  of 
such  legislation  as  the  country  needs. 

The  frequency  of  disputes  between  three  co-ordinate  powers, 
the  President,  the  Senate,  and  the  House. 

The  maintenance  of  a  continuous  policy  is  a  difficulty  in  all 
popular  governments.  In  the  United  States  it  is  specially  so, 
because  — 

The  executive  head  and  his  ministers  are  necessarily  (unless 
when  a  President  is  re-elected)  changed  once  every  four 
years. 

One  House  of  Congress  is  changed  every  two  years. 

aSTeither  House  recognizes  permanent  leaders. 

No  accord  need  exist  between  Congress  and  the  executive. 

There  is  no  such  thing  as  a  Party  in  Power,  in  the  European 
sense  of  the  term,  because  the  party  to  which  the  Executive 
belongs  may  be  in  a  minority  in  one  or  both  Houses  of  Con- 
gress, in  which  case  it  cannot  do  anything  which  requires  fresh 
legislation,  —  may  be  in  a  minority  in  the  Senate,  in  which 
case  it  can  take  no  administrative  act  of  importance. 

There  is  little  true  leadership  in  political  action,  because 
the  most  prominent  man  has  no  recognized  party  authority. 
Congress  was  not  elected  to  support  him.  He  cannot  threaten 
disobedient  followers  with  a  dissolution  of  Parliament  like  an 
English  prime  minister.  He  has  not  even  the  French  presi- 
dent's right  of  dissolving  the  House  with  the  consent  of  the 
Senate. 

There  is  often  no  general  and  continuous  cabinet  policy, 
because  the  cabinet  has  no  authority  over  Congress,  may  per- 
haps have  no  influence  with  it. 

There  is  no  general  or  continuous  legislative  policy,  because 
the  legislature,  having  neither  recognized  leaders,  nor  a  guid- 
ing committee,  acts  through  a  large  number  of  committees, 
independent  of  one  another,  and  seldom  able  to  bring  their 
measures  to  maturity.  What  continuity  exists  is  due  to  the 
general  acceptance  of  a  few  broad  maxims,  such  as  that  of 
non-intervention  in  the  affairs  of  the  Old  World,  and  to  the 
fact  that  a  large  nation  does  not  frequently  or  lightly  change 
its  views  upon  leading  principles.     In  minor  matters  of  legis- 


302  THE   NATIONAL   GOVERNMENT 


lation  there  is  little  settled  policy,  for  the  Houses  trifle  with 
questions,  take  them  up  in  one  session  and  drop  them  the 
next,  seem  insensible  to  the  duty  of  completing  work  once 
beo-un.  Neither  is  there  any  security  that  Congress  will 
attend  to  such  minor  defects  in  the  administrative  system  of 
the  country  as  may  need  a  statute  to  correct  them.  In  Europe 
the  daily  experience  of  the  administrative  departments  dis- 
closes small  faults  or  omissions  in  the  law  which  involve  need- 
less trouble  to  ofiicials,  needless  cost  to  the  treasury,  needless 
injustice  to  classes  of  the  people.  Sometimes  for  their  own 
sakes,  sometimes  from  that  desire  to  see  things  well  done 
which  is  the  life-breath  of  a  good  public  servant,  the  perma- 
nent officials  call  the  attention  of  their  parliamentary  chief, 
the  minister,  to  the  defective  state  of  the  law,  and  submit  to 
him  the  draft  of  a  bill  to  amend  it.  He  brings  in  this  bill, 
and  if  it  involves  no  matter  of  political  controversy  (which  it 
rarely  does),  he  gets  it  passed.  As  an  American  minister  has 
no  means  (except  by  the  favour  of  a  committee)  of  getting 
anything  he  proposes  attended  to  by  Congress,  it  is  a  mere 
chance  if  such  amending  statutes  as  these  are  introduced  or 
pass  into  law. 

These  defects  are  all  reducible  to  two.  There  is  an  exces- 
sive friction  in  the  American  system,  a  waste  of  force  in  the 
strife  of  various  bodies  and  persons  created  to  check  and  bal- 
ance one  another.  There  is  a  want  of  executive  unity,  and 
therefore  a  possible  want  of  executive  vigour.  Power  is  so 
much  subdivided  that  it  is  hard  at  a  given  moment  to  concen- 
trate it  for  prompt  and  effective  action.  In  fact,  this  happens 
only  when  a  distinct  majority  of  the  people  are  so  clearly  of 
one  mind  that  the  several  co-ordinate  organs  of  government 
obey  this  majority,  uniting  their  efforts  to  serve  its  will. 

VII.  The  relations  of  the  people  to  the  legislature  are  in 
every  free  country  so  much  the  most  refined  and  delicate,  as 
well  as  so  much  the  most  important  part  of  the  whole  scheme 
and  doctrine  of  government,  that  we  must  not  expect  to  find 
perfection  anywhere.  But  comparing  America  with  Great 
Britain  from  1832  to  1885  (for  it  is  still  too  soon  to  judge  the 
condition  of  things  created  by  the  Keform  Acts  of  that  year), 
the  working  of  the  representative  system  in  America  seems 
somewhat  inferior. 


CH.  XXVI     REFLECTIONS  ON  FRAME  OF  GOVERNMENT  303 

There  are  four  essentials  to  the  excellence  of  a  representa- 
tive system :  — 

That  the  representatives  shall  be  chosen   from  among  the 
best  men   of   the   country,   and,   if  possible,   from    its 
natural  leaders. 
That  they  shall  be  strictly  and  palpably  responsible  to  their 

constituents  for  their  speeches  and  votes. 
That  they  shall  have  courage  enough  to  resist  a  momentary 
impulse  of  their  constituents  Avliich  they   think   mis- 
chievous, i.e.  shall  be  representatives  rather  than  mere 
delegates. 
That  they  individually,  and  the  Chamber  they  form,  shall 
have  a  reflex  action  on  the  people,  i.e.  that  while  they 
derive  authority  from  the  people,  they  shall  also  give 
the  people  the  benefit  of  the  experience  they  acquire  in 
the  Chamber,  as  well  as  of  the  superior  knowledge  and 
capacity  they  may  be  presumed  to  possess. 
Americans  hold,  and  no  doubt  correctly,  that  of  these  four 
requisites,  the  first,  third,  and  fourth  are  not  attained  in  their 
country.     Congressmen  are  not  chosen  from  among  the  best 
citizens.     They  mostly  deem  themselves  mere  delegates.     They 
do  not  pretend  to  lead  the  people,  being  indeed  seldom  spe- 
cially qvialified  to  do  so. 

That  the  second  requisite,  responsibility,  is  not  fully  real- 
ized seems  surprising  in  a  democratic  country,  and  indeed 
almost  inconsistent  with  that  conception  of  the  representa- 
tive as  a  delegate,  which  is  supposed,  perhaps  erroneously, 
to  be  characteristic  of  democracies.  Still  the  fact  is  there. 
One  cause,  already  explained,  is  to  be  found  in  the  committee 
system.  Another  is  the  want  of  organized  leadership  in  Con- 
gress. In  Europe,  a  member's  responsibility  takes  the  form 
of  his  being  bound  to  support  the  leader  of  his  party  on  all 
important  divisions.  In  America,  this  obligation  attaches 
only  when  the  party  has  "  gone  into  caucus,"  and  there 
resolved  upon  its  course.  Not  having  the  right  to  direct,  the 
leader  cannot  be  held  responsible  for  the  action  of  the  rank 
and  file.  As  a  third  cause  we  may  note  the  fact  that  owing  to 
the  restricted  competence  of  Congress  many  of  the  questions 
which  chiefly  interest  the  voter  do  not  come  before  Congress 
at  all,  so  that  its  proceedings  are  not  followed  with  that  close 


304  THE   NATIONAL   GOVERNMENT  pakt  i 

and  keen  attention  which  the  debates  and  divisions  of  Euro- 
pean Chambers  excite. 

In  general  the  reciprocal  action  and  reaction  between  the 
electors  and  Congress,  what  is  commonly  called  the  "  touch " 
of  the  people  with  their  agents,  is  not  sufficiently  close,  quick, 
and  delicate.  Kepresentatives  ought  to  give  light  and  leading 
to  the  people,  just  as  the  people  give  stimulus  and  momentum 
to  their  representatives.  This  incidental  merit  of  the  parlia- 
mentary system  is  among  its  greatest  merits.  But  in  America 
the  action  of  the  voter  fails  to  tell  upon  Congress.  He  votes 
for  a  candidate  of  his  own  party,  but  he  does  not  convey  to  that 
candidate  an  impulse  towards  the  carrying  of  particular  meas- 
ures, because  the  candidate  when  in  Congress  will  be  practi- 
cally unable  to  promote  those  measures,  unless  he  happens  to 
be  placed  on  the  committee  to  which  they  are  referred. 
Hence  the  citizen,  when  he  casts  his  ballot,  can  seldom  feel 
that  he  is  advancing  any  measure  or  policy,  except  the  vague 
and  general  policy  indicated  in  his  party  platform.  He  is 
voting  for  a  party,  but  he  does  not  know  what  the  party  will 
do,  and  for  a  man,  but  a  man  whom  chance  may  deprive  of 
the  opportunity  of  advocating  the  measures  he  cares  most  for. 

Conversely,  Congress  does  not  guide  and  illuminate  its  con- 
stituents. It  is  amorphous,  and  has  little  initiative.  It  does 
not  focus  the  light  of  the  nation,  does  not  warm  its  imagination, 
does  not  dramatize  principles  in  the  deeds  and  characters  of 
men.^  This  happens  because,  in  ordinary  times,  it  lacks  great 
leaders,  and  the  most  obvious  cause  why  it  lacks  them,  is  its 
disconnection  from  the  executive.  As  it  is  often  devoid  of 
such  men,  so  neither  does  the  country  habitually  come  to  it  to 
look  for  them.  In  the  old  days,  neither  Hamilton,  nor  Jeffer- 
son, nor  John  Adams,  in  our  own  time,  neither  Stanton,  nor 
Grant,  nor  Tilden,  nor  Cleveland  ever  sat  in  Congress.  Lin- 
coln sat  for  two  years  only,  and  owed  little  of  his  subsequent 
eminence  to  his  career  there. 

1  As  an  illustration  of  the  want  of  the  dramatic  element  in  Congress,  I  may 
mention  that  some  at  least  of  the  parliamentary  debating  societies  in  the 
American  colleges  (colleges  for  women  included)  take  for  their  model  not 
either  House  of  Congress  hut  the  Britisli  House  of  Commons,  the  students 
conducting  their  debates  under  the  names  of  prominent  members  of  that  as- 
sembly. They  say  that  they  do  this  because  Congress  has  no  Ministry  and  no 
leaders  of  the  Opposition. 


CH.  XXVI     REFLECTIONS  ON  FRAME  OF  GOVERNJMENT  305 


YIII.  The  independence  of  the  judiciary,  due  to  its  holding 
for  life,  has  been  a  conspicuous  merit  of  the  Federal  system, 
as  compared  with  the  popular  election  and  short  terms  of 
judges  in  most  of  the  States.  Yet  even  the  Federal  judiciary 
is  not  secure  from  the  attacks  of  the  two  other  powers,  if 
combined.  For  the  legislature  may  by  statute  increase  the 
number  of  Federal  justices,  increase  it  to  any  extent,  since  the 
Constitution  leaves  the  number  undetermined,  and  the  Presi- 
dent may  appoint  persons  whom  he  knows  to  be  actuated  by  a 
particular  political  bias,  perhaps  even  prepared  to  decide 
specific  questions  in  a  particular  sense.  Thus  he  and  Congress 
together  may  obtain  such  a  judicial  determination  of  any  con- 
stitutional question  as  they  join  in  desiring,  even  although 
that  question  has  been  heretofore  differently  decided  by  the 
Supreme  court.  The  only  safeguard  is  in  the  disapproval  of 
the  people. 

It  is  worth  remarking  that  the  points  in  which  the  American 
frame  of  national  government  has  proved  least  successful  are 
those  which  are  most  distinctly  artificial,  i.e.  those  which  are 
not  the  natural  outgrowth  of  old  institutions  and  well-formed 
habits,  but  devices  consciously  introduced  to  attain  specific 
ends.^  The  election  of  the  President  and  Vice-President  by 
electors  appointed  ad  hoc  is  such  a  device.  The  functions  of 
the  judiciary  do  not  belong  to  this  category ;  they  are  the  nat- 
ural outgrowth  of  common  law  doctrines  and  of  the  previous 
history  of  the  colonies  and  States  ;  all  that  is  novel  in  them, 
for  it  can  hardly  be  called  artificial,  is  the  creation  of  Courts 
co-extensive  with  the  sphere  of  the  national  government. 

All  the   main   features  of   American  government    may   be 

1  See  Chapter  IV.  ante,  and  Note  thereto. 

This  may  seem  to  be  another  way  of  saying  that  natiu-e,  i.e.  historical  devel- 
opment, is  wiser  than  the  wisest  men.  Yet  it  must  he  remembered  that  what 
we  call  historical  development  is  really  the  result  of  a  great  many  small  expe- 
dients invented  by  men  during  many  generations  for  curing  the  particular 
evils  in  their  government  which  from  time  to  time  had  to  be  cured.  The  moral 
therefore  is  that  a  succession  of  small  improvements,  each  made  conformably 
to  existing  conditions  and  habits,  is  more  likely  to  succeed  than  a  large  scheme, 
made  all  at  once  in  what  may  be  called  the  spirit  of  conscious  experiment. 
The  Federal  Constitution  has  been  generally  supposed  in  Europe  to  have  been 
such  a  scheme,  and  its  success  has  encouraged  other  countries  to  attempt  simi- 
lar bold  and  large  experiments.  This  is  an  error.  The  Constitution  of  the 
United  States  is  almost  as  truly  the  matured  result  of  long  and  gradual  his- 
torical development  as  the  English  Constitution  itself. 

VOL.  I  X 


306  THE   NATIONAL   GOVERNMENT 


deduced  from  two  principles.  One  is  the  sovereignty  of  the 
people,  which  expresses  itself  in  the  fact  that  the  supreme  law 

the  Constitution  —  is  the  direct  utterance  of  their  will,  that 

they  alone  can  amend  it,  that  it  prevails  against  every  other 
law,  that  whatever  powers  it  does  not  delegate  are  deemed  to 
be  reserved  to  it,  that  every  power  in  the  State  draws  its 
authority,  whether  directly,  like  the  House  of  Eepresentatives, 
or  in  the  second  degree,  like  the  President  and  the  Senate, 
or  in  the  third  degree,  like  the  Federal  judiciary,  from  the 
people,  and  is  legally  responsible  to  the  people,  and  not  to  any 
one  of  the  other  powers. 

The  second  principle,  itself  a  consequence  of  this  first  one, 
is  the  distrust  of  the  various  organs  and  agents  of  government. 
The  States  are  carefully  safeg\iarded  against  aggression  by  the 
central  government.  So  are  the  individual  citizens.  Each  organ 
of  government,  the  executive,  the  legislature,  the  judiciary,  is 
made  a  jealous  observer  and  restrainer  of  the  others.  Since 
the  people,  being  too  numerous,  cannot  directly  manage  their 
affairs,  but  must  commit  them  to  agents,  they  have  resolved  to 
prevent  abuses  by  trusting  each  agent  as  little  as  possible,  and 
subjecting  him  to  the  oversight  of  other  agents,  who  will  harass 
and  check  him  if  he  attempts  to  overstep  his  instructions. 

Some  one  has  said  that  the  American  Government  and  Con- 
stitution are  based  on  the  theology  of  Calvin  and  the  philoso- 
phy of  Hobbes.  This  at  least  is  true,  that  there  is  a  hearty 
Puritanism  in  the  view  of  human  nature  which  pervades  the 
instrument  of  1787.  It  is  the  work  of  men  who  believed  in 
original  sin,  and  were  resolved  to  leave  open  for  transgressors 
no  door  which  they  could  possibly  shut.^  Compare  this  spirit 
with  the  enthusiastic  optimism  of  the  Frenchmen  of  1789.  It 
is  not  merely  a  difference  of  race  temperaments ;  it  is  a  differ- 
ence of  fundamental  ideas. 

With  the  spirit  of  Puritanism  there  is  blent  a  double  portion 
of  the  spirit  of  legalism.  Not  only  is  there  no  reliance  on 
ethical  forces  to  help  the  government  to  work :  there  is  an 
elaborate  machinery  of  law  to  preserve  the  equilibrium  of  each 
of  its  organs.  The  aim  of  the  Constitution  seems  to  be  not  so 
much  to  attain  great  common  ends  by  securing  a  good  govern- 

1  "  That  power  mi^lit  be  abused,"  says  Marshall  in  his  Life  of  WashiiKjton, 
"  was  deemed  a  conclusive  reason  why  it  should  not  be  conferred." 


KEFLECTIONS  ON  FRAME  OF  GOVERNMENT  307 


ment  as  to  avert  the  evils  which  will  flow,  not  merely  from  a 
bad  government,  but  from  any  government  strong  enough  to 
threaten  the  pre-existing  communities  or  the  individual  citizen. 

The  spirit  of  1776,  as  it  speaks  to  us  from  the  Declaration 
of  Independence  and  the  glowing  periods  of  Patrick  Henry, 
was  largely  a  revolutionary  spirit,  revolutionary  in  its  faith  in 
abstract  principles,  revolutionary  also  in  its  determination  to 
carry  through  a  tremendous  political  change  in  respect  of 
grievances  which  the  calm  judgment  of  history  does  not  deem 
intolerable,  and  which  might  probably  have  been  redressed  by 
less  trenchant  methods.  But  the  spirit  of  1787  was  an  English 
spirit,  and  therefore  a  conservative  spirit,  tinged,  no  doubt,  by 
the  hatred  to  tyranny  developed  in  the  revolutionary  struggle, 
tinged  also,  by  the  nascent  dislike  to  inequality,  but  in  the 
main  an  English  spirit,  which  desired  to  walk  in  the  old  paths 
of  precedent,  which  thought  of  government  as  a  means  of  main- 
taining order  and  securing  to  every  one  his  rights,  rather  than 
as  a  great  ideal  power,  capable  of  guiding  and  developing  a 
nation's  life.  And  thus,  though  the  Constitution  of  1789 
represented  a  great  advance  on  the  still  oligarchic  system  of 
contemporary  England,  it  was  yet,  if  we  regard  simply  its 
legal  provisions,  the  least  democratic  of  democracies.  Had 
the  points  which  it  left  undetermined,  as  for  instance  the  quali- 
fications of  congressional  electors,  been  dealt  with  in  an  aristo- 
cratic spirit,  had  the  legislation  of  Congress  and  of  the  several 
States  taken  an  aristocratic  turn,  it  might  have  grown  into  an 
aristocratic  system.  The  democratic  character  which  it  now 
possesses  is  largely  the  result  of  subsequent  events,  which 
have  changed  the  conditions  under  which  it  had  to  work,  and 
have  delivered  its  development  into  the  hands  of  that  passion 
for  equality  which  has  become  a  powerful  factor  in  the  modern 
world  everywhere. 

He  who  should  desire  to  draw  an  indictment  against  the 
American  scheme  of  government  might  make  it  a  long  one,  and 
might  for  every  count  in  it  cite  high  American  authority  and 
adduce  evidence  from  American  history.  Yet  a  European 
reader  would  greatly  err  were  he  to  conclude  that  this  scheme 
of  government  is  a  failure,  or  is,  indeed,  for  the  purposes  of 
the  country,  inferior  to  the  political  system  of  any  of  the  great 
nations  of  the  Old  World. 


308  THE   NATIONAL   GOVERNMENT  part  i 

All  governments  are  faulty  ;  and  an  equally  minute  analysis 
of  the  constitution  of  England,  or  France,  or  Germany  would 
disclose  mischiefs  as  serious,  relatively  to  the  problems  with 
which  those  states  have  to  deal,  as  those  we  have  noted  in  the 
American  system.  To  any  one  familiar  with  the  practical 
working  of  free  governments  it  is  a  standing  wonder  that  they 
work  at  all.  The  first  impulse  of  mankind  is  to  follow  and 
obey  ;  servitude  rather  than  freedom  is  their  natural  state. 
With  freedom,  when  it  emerges  among  the  more  progressive 
races,  there  come  dissension  and  faction ;  and  it  takes  many 
centuries  to  form  those  habits  of  compromise,  that  love  of 
order,  and  that  respect  for  public  opinion  which  make  democ- 
racy tolerable.  What  keeps  a  free  government  going  is  the 
good  sense  and  patriotism  of  the  people,  or  of  the  guiding  class, 
embodied  in  usages  and  traditions  which  it  is  hard  to  describe, 
but  which  find,  in  moments  of  difficulty,  remedies  for  the  in- 
evitable faults  of  the  system.  Now,  this  good  sense  and  that 
power  of  subordinating  sectional  to  national  interests  which 
we  call  patriotism,  exist  in  higher  measure  in  America  than  in 
any  of  the  great  states  of  Europe.  And  the  United  States, 
more  than  any  other  country,  are  governed  by  public  opinion, 
that  is  to  say,  by  the  general  sentiment  of  the  mass  of  the 
nation,  which  all  the  organs  of  the  national  government  and  of 
the  State  governments  look  to  and  obey.^ 

A  philosopher  from  Jupiter  or  Saturn  who  should  examine 
the  constitution  of  England  or  that  of  America  would  probably 
pronounce  that  such  a  body  of  complicated  devices,  full  of 
opportunities  for  conflict  and  deadlock,  could  not  work  at  all. 
Many  of  those  who  examined  the  American  Constitution  when 
it  was  launched  did  point  to  a  multitude  of  difficulties,  and 
confidently  predicted  its  failure.  Still  more  confidently  did 
the  European  enemies  of  free  government  declare  in  the  crisis 
of  the  War  of  Secession  that  "the  republican  bubble  had 
burst."  Some  of  these  censvires  were  well  grounded,  though 
there  were  also  defects  which  had  escaped  criticism,  and  were 
first  disclosed  by  experience.  But  the  Constitution  has  lived 
on  in  spite  of  all  defects,  and  seems  stronger  now  than  at  any 
previous  epoch. 

1  The  nature  of  public  opinion  and  the  way  in  which  it  governs  are  discussed 
in  Part  IV. 


CH.  XXVI 


REFLECTIONS  ON  FRAME  OF  GOVERNMENT  309 


Every  constitution,  like  every  man,  has  "  the  defects  of  its 
good  qualities."  If  a  nation  desires  perfect  stability  it  must 
put  up  with  a  certain  slowness  and  cumbrousness ;  it  must  face 
the  possibility  of  a  want  of  action  where  action  is  called  for. 
If  on  the  other  hand,  it  seeks  to  obtain  executive  speed  and 
vio-our  by  a  complete  concentration  of  power,  it  must  run  the 
risk  that  power  will  be  abused  and  irrevocable  steps  too  hastily 
taken.  "  The  liberty -loving  people  of  every  country,"  says 
Judge  Cooley,^  "take  courage  from  American  freedom,  and 
find  augury  of  better  days  for  themselves  from  American 
prosperity.  But  America  is  not  so  much  an  example  in  her 
liberty  as  in  the  covenanted  and  enduring  securities  w^hich  are 
intended  to  prevent  liberty  degenerating  into  licence,  and  to 
establish  a  feeling  of  trust  and  repose  under  a  beneficent 
government,  whose  excellence,  so  obvious  in  its  freedom,  is 
still  more  conspicuous  in  its  careful  provision  for  permanence 
and  stability."  Those  faults  on  which  I  have  laid  stress,  the 
waste  of  power  by  friction,  the  want  of  unity  and  vigour  in 
the  conduct  of  affairs  by  executive  and  legislature,  are  the 
price  which  the  Americans  pay  for  the  autonomy  of  their 
States,  and  for  the  permanence  of  the  equilibrium  among  the 
various  branches  of  their  government.  They  pay  this  price 
willingly,  because  these  defects  are  far  less  dangerous  to  the 
body  politic  than  they  would  be  in  a  European  country.  Take 
for  instance  the  shortcomings  of  Congress  as  a  legislative 
authority.  Every  European  country  is  surrounded  by  diffi- 
culties which  legislation  must  deal  with,  and  that  promptly. 
But  in  America,  where  those  relics  of  mediaeval  privilege  aiid 
injustice  that  still  cumber  most  parts  of  the  Old  World  either 
never  existed,  or  were  long  ago  abolished,  where  all  the  con- 
ditions of  material  prosperity  exist  in  ample  measure,  and  the 
development  of  material  resources  occupies  men's  minds,  where 
nearly  all  social  reforms  lie  within  the  sphere  of  State  action, 
—  in  America  there  is  less  need  and  less  desire  than  in  Europe 
for  a  perennial  stream  of  federal  legislation.  People  are  con- 
tented if  things  go  on  fairly  well  as  they  are.  Political  philos- 
ophers, or  philanthropists,  perceive  not  a  few  improvements 
which  federal  statutes  might  effect,  but  the  mass  of  the  nation 
does  not  complain,  and  the  wise  see  Congress  so  often  on  the 
1  Address  to  the  South  Carolina  Bar  Association,  December  1886. 


310  THE   NATIONAL   GOVERNMENT  part  i 

point  of  committing    mischievous    errors    that    they  do    not 
deplore  the  barrenness  of  session  after  session. 

Everj-  European  state  has  to  fear  not  only  the  rivalry  but 
the  aggression  of  its  neighbours.  Even  Britain,  so  long  safe 
in  her  insidar  home,  has  lost  some  of  her  security  by  the 
growth  of  steam  navies,  and  has  in  her  Indian  and  colonial 
possessions  given  pledges  to  Fortune  all  over  the  globe.  She, 
like  the  Powers  of  the  European  Continent,  must  maintain 
her  system  of  government  in  full  efficiency  for  war  as  well 
as  for  peace,  and  cannot  afford  to  let  her  armaments  decline, 
her  finances  become  disordered,  the  rigour  of  her  executive 
authority  be  impaired,  sources  of  internal  discord  continue  to 
prey  upon  her  vitals.  But  America  lives  in  a  world  of  her 
own,  ipsa  suis  pollens  opibus,  niliil  indiga  nostri.  Safe  from 
attack,  safe  even  from  menace,  she  hears  from  afar  the  warring 
cries  of  European  races  and  faiths,  as  the  gods  of  Epicurus 
listened  to  the  murmurs  of  the  unhappy  earth  spread  out 
beneath  their  golden  dwellings, 

"  Sejuncta  a  rebus  nostris  semotaque  longe." 

Had  Canada  or  Mexico  grown  to  be  a  great  power,  had  France 
not  sold  Louisiana,  or  had  England,  rooted  on  the  American 
continent,  become  a  military  despotism,  the  United  States 
could  not  indulge  the  easy  optimism  which  makes  them  toler- 
ate the  faults  of  their  government.  As  it  is,  that  which  might 
prove  to  a  European  state  a  mortal  disease  is  here  nothing 
worse  than  a  teasing  ailment.  Since  the  War  of  Secession 
ended,  no  serious  danger  has  arisen  either  from  within  or  from 
without  to  alarm  transatlantic  statesmen.  Social  con\Tilsions 
from  within,  war-like  assaults  from  without,  seem  now  as 
ujilikely  to  try  the  fabric  of  the  American  Constitution,  as  an 
earthquake  to  rend  the  walls  of  the  Capitol.  This  is  why  the 
Americans  submit,  not  merely  patiently  but  hopefully,  to  the 
defects  of  their  government.  The  vessel  may  not  be  any  better 
built,  or  found,  or  rigged  than  are  those  which  carry  the  for- 
tunes of  the  great  nations  of  Europe.  She  is  certainly  not 
better  navigated.  But  for  the  present  at  least — it  may  not 
always  be  so  —  she  sails  upon  a  summer  sea. 

It  must  never  be  forgotten  that  the  main  object  which  the 
framers  of  the  Constitution  set  before  themselves  has  been 


CH.  XXVI     REFLECTIONS  OX  FRAME  OF  GOVERNMENT  311 


o 


achieved.  When  Sieyes  was  asked  what  he  had  done  duriu 
the  Reign  of  Terror,  he  answered,  "  I  lived."  The  Constitu 
tion  as  a  whole  has  stood  and  stands  unshaken.  The  scales 
of  power  have  continued  to  hang  fairly  even.  The  President 
has  not  corrupted  and  enslaved  Congress :  Congress  has  not 
paralyzed  and  cowed  the  President.  The  legislative  may  have 
gained  somewhat  on  the  executive  department ;  j-et  were 
George  Washington  to  return  to  earth,  he  might  be  as  great 
and  useful  a  President  as  he  was  a  century  ago.  ZSTeither  the 
legislature  nor  the  executive  has  for  a  moment  threatened 
the  liberties  of  the  people.  The  States  have  not  broken  up  the 
Union,  and  the  Union  has  not  absorbed  the  States.  Xo  won- 
der that  the  Americans  are  proud  of  an  instrument  under 
which  this  great  resiilt  has  been  attained,  which  has  passed 
unscathed  through  the  furnace  of  civil  war,  which  has  been 
found  capable  of  embracing  a  body  of  commonwealths  more 
than  three  times  as  numerous,  and  with  tAventy-fold  the  popu- 
lation of  the  original  States,  which  has  cultivated  the  politi- 
cal intelligence  of  the  masses  to  a  point  reached  in  no  other 
country,  which  has  fostered  and  been  found  compatible  with 
a  larger  measure  of  local  self-government  than  has  existed  else- 
where. Nor  is  it  the  least  of  its  merits  to  have  made  itself 
beloved.  Objections  may  be  taken  to  particular  features, 
and  these  objections  point,  as  most  American  thinkers  are 
agreed,  to  practical  improvements  which  would  preserve  the 
excellences  and  remove  some  of  the  inconveniences.  But 
reverence  for  the  Constitution  has  become  so  potent  a  con- 
servative influence,  that  no  proposal  of  fundamental  change 
seems  likely  to  be  entertained.  And  this  reverence  is  itself 
one  of  the  most  wholesome  and  hopeful  elements  in  the  charac- 
ter of  the  American  people. 


CHAPTER  XXVII 

THE    FEDERAL    SYSTEM 

Having  examined  the  several  branches  of  the  National  gov- 
ernment and  the  manner  in  which  they  work  together,  we  may 
now  proceed  to  examine  the  American  Commonwealth  as  a 
Federation  of  States.  The  present  chapter  is  intended  to  state 
concisely  the  main  features  which  distinguish  the  Federal 
system,  and  from  which  it  derives  its  peculiar  character. 
Three  other  chapters  will  describe  its  practical  working,  and 
summarize  the  criticisms  that  may  be  passed  upon  it. 

The  contests  in  the  Convention  of  1787  over  the  framing  of 
the  Constitution,  and  in  the  country  over  its  adoption,  turned 
upon  two  points :  the  extent  to  which  the  several  States  should 
be  recognized  as  independent  and  separate  factors  in  the  con- 
struction of  the  National  government,  and  the  quantity  and 
nature  of  the  powers  which  should  be  withdrawn  from  the 
States  to  be  vested  in  that  government.  It  has  been  well  re- 
marked that  "  the  first  of  these,  the  definition  of  the  structural 
powers,  gave  more  trouble  at  the  time  than  the  second,  because 
the  line  of  partition  between  the  powers  of  the  States  and  the 
Federal  government  had  been  already  fixed  by  the  whole  expe- 
rience of  the  country."  ^  But  since  1791  there  has  been  prac- 
tically no  dispute  as  to  the  former  point,  and  little  as  to  the 
propriety  of  the  provisions  which  define  the  latter.  On  the 
interpretation  of  these  provisions  there  has,  however,  been 
endless  debate,  some  deeming  the  Constitution  to  have  taken 
more  from  the  States,  some  less  ;  while  still  warmer  contro- 
versies have  raged  as  to  the  matters  which  the  instrument 
does  not  expressly  deal  with,  and  particularly  whether  the 
States  retain  their  sovereignty,  and  with  it  the  right  of  nullify- 

1 1  quote  from  an  acute  and  concise  essay  on  this  subject  by  Mr.  Richard 
M.  Venable  of  Baltimore,  entitled   "The  Partition  of  Powers  between  the 
Federal  and  State  Governments." 
312 


CHAP.  XXVII  THE   FEDERAL   SYSTEM  313 


ing  or  refusing  to  be  bound  by  certain  acts  of  the  national  gov- 
ernment, and  in  tlie  last  resort  of  withdrawing  from  the  Union. 
As  these  latter  questions  (nulliiication  and  secession)  have  now 
been  settled  by  the  Civil  War,  we  may  say  that  in  the  America 
of  to-day  there  exists  a  general  agreement  — 

That  every  State  on  entering  the  Union  finally  renounced  its 
sovereignty,  and  is  now  for  ever  subject  to  the  Federal  authority 
as  defined  by  the  Constitution. 

That  the  functions  of  the  States  as  factors  of  the  national 
government  are  satisfactory,  i.e.  sufficiently  secure  its  strength 
and  the  dignity  of  these  communities. 

That  the  delimitation  of  powers  between  the  national  govern- 
ment and  the  States,  contained  in  the  Constitution,  is  conven- 
ient, and  needs  no  fundamental  alteration.^ 

The  ground  which  we  have  to  tread  during  the  remainder  of 
this  chapter  is  therefore  no  longer  controversial  ground,  but 
that  of  well-established  laAv  and  practice. 

I.  The  distribution  of  powers  between  the  National  and  the 
State  governments  is  effected  in  two  ways — Positively,  by  con- 
ferring certain  powers  on  the  National  government ;  Negatively, 
by  imposing  certain  restrictions  on  the  States.  It  would  have 
been  superfluous  to  confer  any  powers  on  the  States,  because 
they  retain  all  powers  not  actually  taken  from  them.  A  law- 
yer may  think  that  it  was  equally  unnecessary  and,  so  to  speak, 
inartistic,  to  lay  any  prohibitions  on  the  National  government, 
because  it  could  ex  hypotliesi  exercise  no  powers  not  expressly 
granted.  However,  the  anxiety  of  the  States  to  fetter  the 
master  they  were  giving  themselves  caused  the  introduction 
of  provisions  qualifying  the  grant  of  express  powers,  and  inter- 
dicting the  National  government  from  various  kinds  of  action 
on  which  it  might  otherwise  have  been  tempted  to  enter.^ 


1  The  view  that  the  power  of  Congress  to  legislate  might  properly  be  ex- 
tended, by  a  constitutional  amendment,  to  sucli  a  subject  as  marriage  and 
divorce,  is  of  course  compatible  with  an  acquiescence  in  the  general  scheme  of 
delimitation  of  powers. 

2  Judge  Cooley  observes  to  me,  "The  prohibitions  Imposed  by  the  Federal 
Constitution  on  the  exercise  of  power  by  the  general  government  were  not,  for 
the  most  part,  to  prevent  its  encroaching  on  the  powers  left  with  the  States, 
but  to  preclude  tyrannical  exercise  of  powers  which  were  unquestionably  given 
to  the  Federal  government.  Thus  Congress  was  forbidden  to  pass  any  bill  of 
attainder ;  this  was  to  prevent  its  dealing  with  Federal  offences  by  legislative 
conviction  and  sentence.    It  was  forbidden  to  pass  ex  post  facto  laws,  and  this 


314  THE   NATIONAL   GOVERNMENT  part  i 

The  matter  is  further  complicated  by  the  fact  that  the  grant 
of  power  to  the  National  government  is  not  in  all  cases  an 
exclusive  grant:  i.e.  there  are  matters  which  both,  or  either, 
the  States  and  the  National  government  may  deal  with.  "  The 
mere  grant  of  a  power  to  Congress  does  not  of  itself,  in  most 
cases,  imply  a  prohibition  upon  the  States  to  exercise  the  like 
power.  ...  It  is  not  the  mere  existence  of  the  National 
power,  but  its  exercise,  which  is  incompatible  with  the  exercise 
of  the  same  power  by  the  States."  ^  Thus  we  may  distinguish 
the  following  classes  of  governmental  powers  :  — 

Powers  vested  in  the  National  government  alone. 

Powers  vested  in  the  States  alone. 

Powers  exercisable  by  either  the  National  government  or  the 
States. 

Powers  forbidden  to  the  National  government. 

Powers  forbidden  to  the  State  governments. 

It  might  be  thought  that  the  two  latter  classes  are  super- 
fluous, because  whatever  is  forbidden  to  the  National  govern- 
ment must  be  permitted  to  the  States,  and  conversely,  whatever 
is  forbidden  to  the  States  must  be  permitted  to  the  National 
government.  But  this  is  not  so.  For  instance.  Congress  can 
grant  no  title  of  nobility  (Art.  i.  §  9).  But  neither  can  a  State 
do  so  (Art.  i.  §  10).  The  National  government  cannot  take 
private  property  for  public  use  without  just  compensation 
(Amendment  v.).  Apparently  neither  can  any  State  do  so 
(Amendment  xiv.  as  interpreted  in  several  cases).  So  no 
State  can  pass  any  law  impairing  the  obligation  of  a  contract 
(Art.  i.  §  10).  But  the  National  government,  although  not 
subject  to  a  similar  direct  prohibition,  has  received  no  general 
power  to  legislate  as  regards  ordinary  contracts,  and  might 
therefore  in  some  cases  find  itself  equally  unable  to  pass  a  law 
which  a  State  legislature,  though  for  a  different  reason,  could 
not  pass.^  So  no  State  can  pass  any  ex  post  facto  law.  Neither 
can  Congress. 

undoubtedly  is  a  limitation  upon  power  granted ;  for  with  the  same  complete 
power  in  respect  to  offences  against  tlie  general  government  which  a  sover- 
eignty possesses,  it  might  have  passed  such  laws  if  not  prohibited." 

1  Cooley,  Principles,  p.  35 ;  cf.  Sturges  v.  Croioninshield,  4  Wheat.  122. 

2  Of  course  Congress  can  legislate  regarding  some  contracts,  and  can  impair 
their  obligation.  It  has  power  to  regulate  commerce,  it  can  pass  bankrupt 
laws,  it  can  make  paper  money  legal  tender. 


CHAP,  xxvii  THE   FEDERAL   SYSTEM  315 

"What  the  Constitution  has  clone  is  not  to  cut  in  half  the  to- 
tality of  governmental  functions  and  powers,  giving  part  to  the 
national  government  and  leaving  all  the  rest  to  the  States,  but 
to  divide  up  this  totality  of  authority  into  a  number  of  parts 
which  do  not  exhaust  the  whole,  but  leave  a  residuum  of 
powers  neither  granted  to  the  Union  nor  continued  to  the 
States  but  reserved  to  the  people,  who,  however,  can  put  them 
in  force  only  by  the  difficult  process  of  amending  the  Constitu- 
tion. In  other  words,  there  are  things  in  America  which  there 
exists  no  organized  and  permanent  authority  capable  of  legally 
doing,  not  a  State,  because  it  is  expressly  forbidden,  not  the 
national  government,  because  it  either  has  not  received  the 
competence  or  has  been  expressly  forbidden.  Suppose,  for  in- 
stance, that  there  should  arise  a  wish  to  pass  for  California 
such  a  measure  as  the  Irish  Land  Act  passed  by  the  British 
Parliament  in  1881.  Neither  the  State  legislature  of  Califor- 
nia, nor  the  people  of  California  assembled  in  a  constitutional 
convention,  could  pass  such  a  measure,  because  it  would  violate 
the  obligation  of  contracts,  and  thereby  transgress  Art.  i  §  10 
of  the  Federal  Constitution,  Whether  the  Federal  Congress 
could  pass  such  a  measure  is  at  least  extremely  doubtful,  be- 
cause the  Constitution,  though  it  has  imposed  no  prohibition 
such  as  that  which  restricts  a  State,  does  not  seem  to  have  con- 
ferred on  Congress  the  right  of  legislating  on  such  a  matter  at 
all.^  If,  therefore,  an  absolute  and  overwhelming  necessity  for 
the  enactment  of  such  a  measure  should  arise,  the  safer  if  not 
the  only  course  would  be  to  amend  the  Federal  Constitution, 
either  by  striking  out  the  prohibition  on  the  States  or  by  con- 
ferring the  requisite  power  on  Congress,  a  process  which  would 
probably  occupy  more  than  a  year,  and  which  requires  the  con- 
currence of  two-thirds  of  both  Houses  of  Congress  and  of  three- 
fourths  of  the  forty -four  States. 

II.  The  powers  vested  in  the  iSTational  government  alone  are 
such  as  relate  to  the  conduct  of  the  foreign  relations  of  the 
country  and  to  such  common  national  purposes  as  the  army  and 
navy,  internal  commerce,  currency,  weights  and  measures,  and 

1  It  may  of  course  be  suggested  that  in  case  of  urgent  public  necessity,  such 
as  the  existence  of  war  or  insurrection,  Congress  might  extinguish  debts  either 
generally  or  in  a  particular  district.  Xo  such  legislative  power  seems,  how- 
ever, to  have  been  exerted  or  declared  by  the  courts  to  exist,  unless  the  prin- 
ciples of  the  last  Legal  Tender  decision  can  be  thought  to  reach  so  far. 


316  THE   NATIONAL   GOVERNMENT  part  i 

the  post-office,  with  provisions  for  the  management  of  the 
machinery,  legislative,  executive,  and  judicial,  charged  with 
these  purposes.^ 

The  powers  which  remain  vested  in  the  States  alone  are  all 
the  other  ordinary  powers  of  internal  government,  such  as 
legislation  on  private  law,  civil  and  criminal,  the  maintenance 
of  law  and  order,  the  creation  of  local  institutions,  the  pro- 
vision for  education  and  the  relief  of  the  poor,  together  with 
taxation  for  the  above  purposes. 

III.  The  powers  which  are  exercisable  concurrently  by  the 
National  government  and  by  the  States  are  — 

Powers  of  legislation  on  some  specified  subjects,  such  as 
bankruptcy  and  certain  commercial  matters  {e.g.  pilot  laws  and 
harbour  regulations),  but  so  that  State  legislation  shall  take 
effect  only  in  the  absence  of  Federal  legislation. 

Powers  of  taxation,  direct  or  indirect,  but  so  that  neither 
Congress  nor  a  State  shall  tax  exports  from  any  State,  and 
so  that  neither  any  State  shall,  except  with  the  consent  of 
Congress,  tax  any  corporation  or  other  agency  created  for 
Federal  purposes  or  any  act  done  under  Federal  authority, 
nor  the  National  government  tax  any  State  or  its  agencies  or 
property. 

Judicial  powers  in  certain  classes  of  cases  where  Congress 
might  have  legislated,  but  has  not,  or  where  a  party  to  a 
suit  has  a  choice  to  proceed  either  in  a  Federal  or  a  State 
court. 

Powers  of  determining  matters  relating  to  the  election  of 
representatives  and  senators  (but  if  Congress  determines,  the 
State  law  gives  way). 

IV.  The  prohibitions  imposed  on  the  National  government 
are  set  forth  in  Art.  i.  §  9,  and  in  the  first  ten  amendments. 
The  most  important  are  — 

Writ  of  habeas  corpus  may  not  be  suspended,  nor  bill  of 
attainder  or  ex  j^ost  facto  law  passed.^ 

No  commercial  preference  shall  be  given  to  one  State  over 
another. 

1  See  Art.  i.  §  8,  Art.  ii.  §  2,  Art.  iii.  §  2,  Art.  iv.  §§  3  and  4;  Amendments 
xiii.  xiv.  XV.  of  the  Constitution. 

2  Limitations  of  a  nature  generally  similar  to  these  are  now  pretty  frequent 
in  recent  European  Constitutions,  e.g.  in  that  of  Belgium. 

The  term  ex  post  facto  law  is  deemed  to  refer  to  criminal  laws  only. 


CHAP,  xxvii  THE   FEDERAL   SYSTEM  317 

No  title  of  nobility  shall  be  granted. 

No  law  shall  be  passed  establishing  or  prohibiting  any  relig- 
ion, or  abridging  the  freedom  of  speech  or  of  the  press,  or  of 
public  meeting  or  of  bearing  arms. 

No  religious  test  shall  be  required  as  a  qualification  for  any 
ofiice  under  the  United  States. 

No  person  shall  be  tried  for  a  capital  or  otherwise  infamous 
crime  unless  on  the  presentment  of  a  grand  jury,  or  be  sub- 
jected to  a  second  trial  for  the  same  oil'ence,  or  be  compelled 
to  be  a  witness  against  himself,  or  be  tried  otherwise  than  by 
a  jury  of  his  State  and  district. 

No  common  law  action  shall  be  decided  except  by  a  jury 
where  the  value  in  dispute  exceeds  i$20,  and  no  fact  deter- 
mined by  a  jury  shall  be  re-examined  otherwise  than  by  the 
rules  of  the  common  law.^ 

V.  The  prohibitions  imposed  on  the  States  are  contained 
in  Art.  i.  §  10,  and  in  the  three  latest  amendments.  They  are 
intended  to  secure  the  National  government  against  attempts 
by  the  States  to  trespass  on  its  domain,  and  to  protect  in- 
dividuals against  oppressive  legislation. 

No  State  shall  —  Make  any  treaty  or  alliance  :  coin  money  : 
make  anything  but  gold  and  silver  coin  a  legal  tender  :  pass 
any  bill  of  attainder,  ex  x)ost  facto  law,  or  law  impairing  the 
obligation  of  contracts  :  grant  any  titles  of  nobility. 

No  State  shall  without  the  consent  of  Congress  —  Lay 
duties  on  exports  or  imports  (the  produce  of  such,  if  laid, 
going  to  the  national  treasury)  :  keep  troops  or  ships  of  war 
in  peace  time  :  enter  into  an  agreement  with  another  State 
or  with  any  foreign  power :  engage  in  war,  unless  actually 
invaded  or  in  imminent  danger. 

Every  State  must  —  Give  credit  to  the  records  and  judicial 
proceedings  of  every  other  State :  extend  the  privileges  and 
immunities  of  citizens  to  the  citizens  of  other  States  :  deliver 
up  fugitives  from  justice  to  the  State  entitled  to  claim  them. 

No  State  shall  have  any  but  a  republican  form  of  govern- 
ment. 

No  State  shall  —  Maintain  slavery :  abridge  the  privileges 
of  any  citizen  of  the  United  States,  or  deny  to  him  the  right 

1  Chiefly  intended  to  prevent  the  metliods  of  courts  of  equity  from  being 
applied  in  the  Federal  courts  as  against  the  findings  of  a  jury. 


318  THE   NATIONAL   GOVERNMENT  part  i 

of  voting,  in  respect  of  race,  colour,  or  previous  servitude :  de- 
prive any  person  of  life,  liberty,  or  property  without  due  process 
of  law :  deny  to  any  person  the  equal  protection  of  the  laws. 

Note  that  this  list  contains  no  prohibition  to  a  State  to  do 
any  of  the  following  things  :  —  Establish  a  particular  form  of 
religion  :  endow  a  particular  form  of  religion,  or  educational  or 
charitable  establishments  connected  therewith:  abolish  trial 
by  jury  in  criminal  or  civil  cases :  suppress  the  freedom  of 
speaking,  writing,  and  meeting  (provided  that  this  be  done 
equally  as  between  different  classes  of  citizens,  and  provided 
also  that  it  be  not  done  to  such  an  extent  as  to  amount  to  a 
deprivation  of  liberty  without  due  process  of  law)  :  limit  the 
electoral  franchise  to  any  extent :  extend  the  electoral  fran- 
chise to  women,  minors,  aliens. 

These  omissions  are  significant.  They  show  that  the  framers 
of  the  Constitution  had  no  wish  to  produce  uniformity  among 
the  States  in  government  or  institutions,  and  little  care  to  pro- 
tect the  citizens'  against  abuses  of  State  power.^  They  were 
content  to  trust  for  this  to  the  provisions  of  the  State  consti- 
tutions. Their  chief  aim  was  to  secure  the  National  govern- 
ment against  encroachments  on  the  part  of  the  States,  and  to 
prevent  causes  of  quarrel  both  between  the  central  and  State 
authorities  and  between  the  several  States.  The  result  has, 
on  the  whole,  justified  their  action.  So  far  from  abusing  their 
power  of  making  themselves  unlike  one  another,  the  States 
have  tended  to  be  too  uniform,  and  have  made  fewer  experi- 
ments in  institutions  than  one  could  wish. 

VI.  The  powers  vested  in  each  State  are  all  of  them  original 
and  inherent  powers,  which  belonged  to  the  State  before  it 
entered  the  Union.  Hence  they  are  prima  facie  unlimited,  and 
if  a  question  arises  as  to  any  particular  power,  it  is  presumed 
to  be  enjoyed  by  the  State,  unless  it  can  be  shown  to  have  been 
taken  away  by  the  Federal  Constitution ;  or,  in  other  words,  a 
State  is  not  deemed  to  be  subject  to  any  restriction  which  the 
Constitution  has  not  distinctly  imposed. 

The  powers  granted  to  the  National  government  are  dele- 
gated powers,  enumerated  in  and  defined  by  the  instrument 

1  The  fourteenth  and  fifteenth  amendments  are  in  this  respect  a  novelty. 
The  only  restrictions  of  this  kind  to  be  found  in  the  instrument  of  1789  are 
those  relating  to  contracts  and  ex  post  facto  laws. 


CHAP.  XXVII  THE   FEDERAL   SYSTEM  319 

wliich  has  created  the  Union.  Hence  the  rule  that  when  a 
question  arises  whether  the  Xational  government  possesses  a 
particular  power,  proof  must  be  given  that  the  power  was  pos- 
itively granted.  If  not  granted,  it  is  not  possessed,  because 
the  Union  is  an  artificial  creation,  whose  government  can  have 
nothing  but  Avhat  the  people  have  by  the  Constitution  conferred. 
The  presumption  is  therefore  against  the  Xational  govern- 
ment in  such  a  case,  just  as  it  is  for  the  State  in  a  like  case.-^ 

VII.  The  authority  of  the  Xational  government  over  the 
citizens  of  every  State  is  direct  and  immediate,  not  exerted 
through  the  State  organization,  and  not  requiring  the  co-opera- 
tion of  the  State  government.  For  most  purposes  the  Xational 
government  ignores  the  States ;  and  it  treats  the  citizens  of 
different  States  as  being  simply  its  own  citizens,  equally  bound 
by  its  laws.  The  Federal  courts,  revenue  officers,  and  post- 
office  draw  no  help  from  any  State  officials,  but  depend  directly 
on  Washington.  Hence,  too,  of  course,  there  is  no  local  self- 
government  in  Federal  matters.  Xo  Federal  official  is  elected 
by  the  people  of  any  local  area.  Local  government  is  purely 
a  State  affair. 

On  the  other  hand,  the  State  in  no  wise  depends  on  the 
Xational  government  for  its  organization  or  its  effective  Avork- 
ing.  It  is  the  creation  of  its  own  inhabitants.  They  have 
given  it  its  constitution.  They  administer  its  government.  It 
goes  on  its  own  way,  touching  the  Xational  government  at  but 
few  points.  That  the  two  should  touch  at  the  fewest  possible 
points  was  the  intent  of  those  who  framed  the  Federal  Consti- 
tution, for  they  saw  that  the  less  contact,  the  less  danger  of 
collision.  Their  aim  was  to  keep  the  two  mechanisms  as  dis- 
tinct and  independent  of  each  other  as  was  compatible  with 
the  still  higher  need  of  subordinating,  for  national  purposes, 
the  State  to  the  Central  government.- 

1  Congress  must  not  attempt  to  interfere  \Nith  the  so-called  "jiolice  power" 
of  the  States  within  their  own  limits.  So  when  a  statute  of  Congress  had 
made  it  punishable  to  sell  certain  illuminating  fluids  inflammable  at  less  than 
a  certain  specifled  temperature,  it  was  held  that  this  statute  could  not  operate 
within  a  State,  but  only  iu  the  District  of  Columbia  and  the  Territories,  and  a 
person  convicted  under  it  in  Detroit  was  discharged  (United  States  v.  De  Witt, 
y  Wall.  41). 

-  For  a  comparison  of  the  Federal  system  of  the  United  States  with  the  Fed- 
eral system  of  the  two  ancient  English  Universities,  see  note  to  this  chapter 
printed  at  the  end  oi  the  volume. 


320  THE   NATIONAL   GOVERNMENT 


VIII.  It  is  a  further  consequence  of  this  principle  that  the 
National  government  has  but  little  to  do  with  the  States  as 
States.  Its  relations  are  with  their  citizens,  who  are  also  its 
citizens,  rather  than  with  them  as  ruling  commonwealths.  In 
the  following  points,  however,  the  Constitution  does  require 
certain  services  of  the  States  :  — 

It  requires  each  State  government  to  direct  the  choice  of, 
and  accredit  to  the  seat  of  the  National  government,  two 
senators  and  so  many  representatives  as  the  State  is  entitled 
to  send. 

It  requires  similarly  that  presidential  electors  be  chosen, 
meet,  and  vote  in  the  States,  and  that  their  votes  be  trans- 
mitted to  the  national  capital. 

It  requires  each  State  to  organize  and  arm  its  militia,  which, 
when  duly  summoned  for  active  service,  are  placed  under  the 
command  of  the  President. 

It  requires  each  State  to  maintain  a  republican  form  of 
government.  (Conversely,  a  State  may  require  the  National 
government  to  protect  it  against  invasion  or  domestic  vio- 
lence.) 

Note  in  particular  that  the  National  government  does  not 
as  in  some  other  federations  — 

Call  upon  the  States,  as  commonwealths,  to  contribute  funds 
to  its  support : 

Issue  (save  in  so  far  as  may  be  needed  in  order  to  secure  £ 
republican  form  of  government)  administrative  orders  to  the 
States,  directing  their  authorities  to  carry  out  its  laws  or  com- 
mands : 

Require  the  States  to  submit  their  laws  to  it,  and  veto  such 
as  it  disapproves. 

The  first  two  things  it  is  not  necessary  for  the  National 
government  to  do,  because  it  levies  its  taxes  directly  by  its 
own  collectors,  and  enforces  its  laws,  commands,  and  judicial 
decrees  by  the  hands  of  its  own  servants.  The  last  can  be 
dispensed  with  because  the  State  laws  are  ijjso  jure  invalid,  if 
they  conflict  with  the  Constitution  or  any  treaty  or  law  duly 
made  under  it  (Art.  vi.  §  2),  while  if  they  do  not  so  conflict 
they  are  valid,  any  act  of  the  National  government  notwith- 
standing. 

Neither  does  the  National  government  allow  its  structure  to 


CHAP.  XXVII  THE   FEDERAL   SYSTEM  321 


be  dependent  on  the  action  of  the  States.  "To  make  it  impos- 
sible for  a  State  or  group  of  States  to  jeopard  by  inaction  or 
hostile  action  the  existence  of  the  central  government,"  was 
a  prime  object  with  the  men  of  1787,  and  has  greatly  contrib- 
uted to  the  solidity  of  the  fabric  they  reared.  The  de  facto 
secession  of  eleven  States  in  1860-61  interfered  Avith  the  regu- 
lar legal  conduct  neither  of  the  presidential  election  of  1864 
nor  of  the  congressional  elections  from  1861  to  1865.  Those 
States  were  not  represented  in  Congress ;  but  Congress  itself 
went  on  diminished  in  numbers  yet  with  its  full  legal  powers, 
as  the  British  Parliament  would  go  on  though  all  the  peers 
and  representatives  from  Scotland  might  be  absent. 

IX.  A  State  is,  within  its  proper  sphere,  just  as  legally 
supreme,  just  as  well  entitled  to  give  effect  to  its  own  will,  as 
is  the  IsTational  government  within  its  sphere  ;  and  for  the 
same  reason.  All  authority  flows  from  the  people.  The  peo- 
ple have  given  part  of  their  supreme  authority  to  the  National, 
part  to  the  State  governments.  Both  hold  by  the  same  title, 
and  therefore  the  National  government,  although  superior 
wherever  there  is  a  concurrence  of  powers,  has  no  more  right 
to  trespass  upon  the  domain  of  a  State  than  a  State  has  upon 
the  domain  of  Federal  action.  That  the  course  which  a  State 
is  following  is  pernicious,  that  its  motives  are  bad  and  its  sen- 
timents disloyal  to  the  Union,  makes  no  difference  until  or 
unless  it  infringes  on  the  sphere  of  Federal  authority.  It  may 
be  thought  that  however  distinctly  this  may  have  been  laid 
down  as  a  matter  of  theory,  in  practice  the  State  will  not 
obtain  the  same  justice  as  the  National  government,  because  the 
court  which  decides  points  of  law  in  dispute  between  the  two 
is  in  the  last  resort  a  Federal  court,  and  therefore  biassed  in 
favour  of  the  Federal  government.  In  fact,  however,  little  or 
no  unfairness  has  arisen  from  this  cause.^  The  Supreme  court 
may,  as  happened  for  twenty  years  before  the  War  of  Seces- 
sion, be  chiefly  composed  of  States'  Eights  men.     In  any  case 

1  "  Whatever  fluctuations  maybe  seen  in  the  history  of  public  opinion  during 
the  period  of  our  national  existence,  we  think  it  will  be  found  that  the  Supreme 
court,  so  far  as  its  functions  required,  has  always  held  with  a  steady  and  even 
hand  the  balance  between  State  and  Federal  power,  and  we  trust  that  such  may 
continue  to  be  the  history  of  its  relation  to  that  subject  so  Ions;  as  it  shall  have 
duties  to  perform  which  demand  of  it  a  construction  of  the  Constitution."  — 
Judgment  of  the  Supreme  court  in  The  Slaughter  House  Cases,  16  Wall.  82. 
VOL.  I  Y 


322  THE   NATIONAL   GOVERNMENT  part  i 

the  court  cannot  stray  far  from  the  path  which  previous  de- 
cisions have  marked  out. 

X.  There  are  several  remarkable  omissions  in  the  constitu- 
tion of  the  American  federation. 

One  is  that  there  is  no  grant  of  power  to  the  National  gov- 
ernment to  coerce  a  recalcitrant  or  rebellious  State.  Another 
is  that  nothing  is  said  as  to  the  right  of  secession.  Any  one 
can  understand  why  this  right  should  not  have  been  granted. 
But  neither  is  it  mentioned  to  be  negatived. 

The  Constitution  was  an  instrument  of  compromises ;  and 
these  were  questions  which  it  would  have  been  unwise  to 
raise. 

There  is  no  abstract  or  theoretic  declaration  regarding  the 
nature  of  the  federation  and  its  government,  nothing  as  to  the 
ultimate  supremacy  of  the  central  authority  outside  the  partic- 
ular sphere  allotted  to  it,  nothing  as  to  the  so-called  sovereign 
rights  of  the  States.  As  if  with  a  prescience  of  the  dangers 
to  follow,  the  wise  men  of  1787  resolved  to  give  no  opening 
for  abstract  inquiry  and  metaphysical  dialectic.  But  in  vain. 
The  human  mind  is  not  to  be  so  restrained.  If  the  New  Tes- 
tament had  consisted  of  no  other  writings  than  the  Gospel  of 
St.  Matthew  and  the  Epistle  of  St.  James,  there  would  have 
been  scarcely  the  less  a  crop  of  speculative  theology.  The 
drily  legal  and  practical  character  of  the  Constitution  did  not 
prevent  the  growth  of  a  mass  of  subtle  and,  so  to  speak,  scho- 
lastic metaphysics  regarding  the  nature  of  the  government  it 
created.  The  inextricable  knots  which  American  lawyers  and 
publicists  went  on  tying,  down  till  1861,  were  cut  by  the  sword 
of  the  North  in  the  Civil  War,  and  need  concern  us  no  longer. 
It  is  now  admitted  that  the  Union  is  not  a  mere  compact  be- 
tween commonwealths,  dissoluble  at  pleasure,  but  an  instru- 
ment of  perpetual  efficacy,^  emanating  from  the  whole  people, 

1  This  view  received  judicial  sanction  in  tlie  famous  case  of  Texas  v.  White 
(7  Wall.  700),  decided  by  the  Supreme  court  after  the  war.  It  is  there  said  by 
Chief-Justice  Chase,  "The  Union  of  the  States  never  was  a  purely  artificial 
and  arbitrary  relation.  ...  It  received  definite  form  and  character  and  sanc- 
tion by  the  Articles  of  Confederation.  By  these  the  Union  was  solemnly  de- 
clared to  be  '  perpetual.'  And  when  these  articles  were  found  to  be  inadequate 
to  the  exigencies  of  the  country,  the  Constitution  was  ordained  '  to  form  a  more 
perfect  Union.'  It  is  difficult  to  convey  the  idea  of  indissoluble  uuity  more 
clearly  than  by  these  words.  What  can  be  indissoluble  if  a  perpetual  union, 
made  more  perfect,  is  not  ?    But  the  perpetuity  and  indissolubility  of  the  Union 


CHAP.  XXVII  THE   FEDP:RAL   SYSTEM  323 

and  alterable  by  them  only  in  the  manner  which  its  own  terms 
prescribe.  It  is  "an  indestructible  Union  of  indestructible 
States." 

It  follows  from  the  recognition  of  the  indestructibility  of  the 
Union  that  there  must  somewhere  exist  a  force  capable  of  pre- 
serving it.  The  National  government  is  now  admitted  to  be 
such  a  force.  "  It  can  exercise  all  powers  essential  to  preserve 
and  protect  its  own  existence  and  that  of  the  States,  and  the 
constitutional  relation  of  the  States  to  itself,  and  to  one 
another."  ^ 

"  May  it  not,"  some  one  will  ask,  "  abuse  these  powers,  abuse 
them  so  as  to  extinguish  the  States  themselves,  and  turn  the 

by  no  means  implies  the  loss  of  distinct  and  individual  existence,  or  of  the 
right  of  self-government  by  the  States.  ...  It  may  be  not  unreasonably  said 
that  the  preservation  of  the  vStates  and  the  maintenance  of  their  governments 
are  as  much  within  the  design  and  care  of  the  Constitution  as  the  preserva- 
tion of  the  Union  and  tlie  maintenance  of  the  national  government.  The 
Constitution,  in  all  its  provisions,  looks  to  an  indestructible  Union  composed 
of  indestructible  States.  When,  therefore,  Texas  became  one  of  the  United 
States  she  entered  into  an  indissoluble  relation.  . .  .  There  was  no  place  for 
reconsideration  or  revocation  except  through  revolution  or  through  consent  of 
the  States.  Considered  therefore  as  transactions  under  the  Constitution,  the 
ordinance  of  secession  adopted  by  the  Convention,  and  ratified  by  a  majority 
of  the  citizens  of  Texas,  was  absolutely  null  and  utterly  without  operation  in 
law.  The  obligations  of  the  State  as  a  member  of  the  Union,  and  of  every 
citizen  of  the  State  as  a  citizen  of  the  United  States,  remained  perfect  and 
unimpaired."  The  State  did  not  cease  to  be  a  State,  nor  her  citizens  to  be  citi- 
zens of  the  Union.  See  also  the  cases  of  White  v.  Hart  (13  Wall.  646)  and 
Keith  V.  Clark  (97  U.  S.  451). 

As  respects  the  argument  that  the  Union  established  by  the  Constitution  of 
1789  must  be  perpetual,  because  it  is  declared  to  have  been  designed  to  make  a 
previous  perpetual  Union  more  perfect,  it  may  be  remarked,  as  matter  of  his- 
tory, that  this  previous  Union  (that  resting  on  the  Articles  of  Confederation) 
had  not  proved  perpetual,  but  was  in  fact  put  an  end  to  by  the  acceptance  in 
1788  of  the  new  Constitution  by  the  nine  States  who  first  ratiiied  that  instru- 
ment. After  that  ratification  the  Confederation  was  dead,  and  the  States  of 
North  Carolina  and  Rhode  Island,  which  for  some  months  refused  to  come  into 
the  new  Union,  were  clearly  out  of  the  old  one,  and,  de  jure  if  not  de  facto,  stood 
alone  in  the  world.  May  it  not  then  be  said  that  those  who  destroyed  a  Union 
purporting  to  be  perpetual  were  thereafter  estopped  from  holding  it  to  have  been 
perpetual,  and  from  foundiug  on  the  word  "perpetual"  an  argument  against 
those  who  tried  to  upset  tlie  new  Union  in  1861,  as  the  old  one  had  been  lapset 
in  1788?  The  answer  to  this  way  of  putting  the  point  seems  to  be  to  admit 
that  the  proceedings  of  1788  were  in  fact  revolutionary.  In  ratifying  their  new 
Constitution  in  that  year,  the  nine  States  broke  through  and  tlung  away  their 
previous  compact  which  purported  to  have  been  made  for  ever.  But  they  did 
so  for  the  sake  of  forming  a  better  and  more  enduring  compact,  and  their 
extra-legal  action  was  amply  justified  by  the  necessities  of  the  case. 

1  Venable,  ut  supra. 


324  THE    NATIONAL   GOVERNMENT 


federation  into  a  unified  government?  What  is  there  but  the 
Federal  judiciary  to  prevent  this  catastrophe  ?  and  the  Federal 
iudiciary  has  only  moral  and  not  also  physical  force  at  its 
command." 

No  doubt  it  may,  but  not  until  public  opinion  supports  it  in 
so  doing — that  is  to  say,  not  until  the  mass  of  the  nation  which 
now  maintains,  because  it  values,  the  Federal  system,  is  pos- 
sessed by  a  desire  to  overthrow  that  system.  Such  a  desire 
may  express  itself  in  proper  legal  form  by  carrying  amend- 
ments to  the  Constitution  which  will  entirely  change  the 
nature  of  the  government.  Or  if  the  minority  be  numerous 
enough  to  prevent  the  passing  of  such  amendments,  and  if  the 
desire  of  the  majority  be  sufficiently  vehement,  the  majority 
which  sways  the  National  government  may  disregard  legal 
sanctions  and  effect  its  object  by  a  revolution.  In  either  event 
—  and  both  are  improbable  —  the  change  which  will  have  passed 
upon  the  sentiments  of  the  American  people  will  be  a  sign -that 
Federalism  has  done  its  work,  and  that  the  time  has  arrived 
for  new  forms  of  political  life. 


CHAPTER  XXVIII 

WORKING    BELATIOXS    OF    THE    NATIONAL    AND    THE    STATE 
GOVERNMENTS 

The  characteristic  feature  and  special  interest  of  the  Amer- 
ican Union  is  that  it  shows  us  two  governments  covering  the 
same  ground,  yet  distinct  and  separate  in  their  action.  It  is 
like  a  great  factory  wherein  two  sets  of  machinery  are  at  work, 
their  revolving  wheels  apparently  intermixed,  their  bands 
crossing  one  another,  yet  each  set  doing  its  own  work  with- 
out touching  or  hampering  the  other.  To  keep  the  National 
government  and  the  State  governments  each  in  the  allotted 
sphere,  preventing  collision  and  friction  between  them,  was 
the  primary  aim  of  those  who  formed  the  Constitution,  a  task 
the  more  needful  and  the  more  delicate  because  the  States  had 
been  until  then  almost  independent  and  therefore  jealous  of 
their  privileges,  and  because,  if  friction  should  arise,  the 
National  government  could  not  remove  it  by  correcting  defects 
in  the  machinery.  For  the  National  government,  being  itself 
the  creature  of  the  Constitution,  was  not  permitted  to  amend 
the  Constitution,  but  could  only  refer  it  back  for  amendment 
to  the  people  of  the  States  or  to  their  legislatures.  Hence  the 
men  of  1787,  feeling  the  cardinal  importance  of  anticipating 
and  avoiding  occasions  of  collision,  sought  to  accomplish  their 
object  by  the  concxirrent  application  of  two  devices.  One  was 
to  restrict  the  functions  of  the  National  government  to  the 
irreducible  minimum  of  functions  absolutely  needed  for  the 
national  welfare,  so  that  everything  else  should  be  left  to 
the  States.  The  other  was  to  give  that  government,  so  far  as 
those  functions  extended,  a  direct  and  immediate  relation  to 
the  citizens,  so  that  it  should  act  on  them  not  through  the 
States  but  of  its  own  authority  and  by  its  own  officers.  These 
are    fundamental  principles  whose  soundness   experience  has 


326  THE  NATIONAL  GOVERNMENT 


approved,  and  which  will  deserve  to  be  considered  by  those 
who  in  time  to  come  may  have  in  other  countries  to  frame 
federal  or  quasi-federal  constitutions.  They  were  studied,  and 
to  a  large  extent,  though  in  no  slavish  spirit,  adopted  by  the 
founders  of  the  present  constitution  of  the  Swiss  Confedera- 
tion, a  constitution  whose  success  bears  further  witness  to  the 
soundness  of  the  American  doctrines. 

The  working  relations  of  the  National  government  to  the 
States  may  be  considered  under  two  heads,  viz.  its  relations 
to  the  States  as  communities,  and  its  relations  to  the  citizens 
of  the  States  as  individuals,  they  being  also  citizens  of  the 
Union. 

The  National  government  touches  the  States  as  corporate 
commonwealths  in  three  points.  One  is  their  function  in 
helping  to  form  the  National  government ;  another  is  the 
control  exercised  over  them  by  the  Federal  Constitution  through 
the  Federal  courts;  the  third  is  the  control  exercised  over 
them  by  the  Federal  Legislature  and  Executive  in  the  dis- 
charge of  the  governing  functions  which  these  latter  authori- 
ties possess. 

I.  The  States  serve  to  form  the  National  government  by 
choosing  presidential  electors,  by  choosing  senators,  and  by 
fixing  the  franchise  which  qualifies  citizens  to  vote  for  mem- 
bers of  the  House  of  Representatives.^  No  difficulty  has  ever 
arisen  (except  during  the  Civil  War)  from  any  unwillingness 
of  the  States  to  discharge  these  duties,  for  each  State  is  eager 
to  exercise  as  much  influence  as  it  can  on  the  national  execu- 
tive and  Congress.  But  note  how  much  latitude  has  been  left 
to  the  States.  A  State  may  appoint  its  presidential  electors 
in  any  way  it  pleases.  All  States  now  do  appoint  them  by 
popular  vote.  But  during  the  first  thirty  years  of  the  Union 
many  States  left  the  choice  of  electors  to  their  respective  legis- 
latures. So  a  State  may,  by  its  power  of  prescribing  the  fran- 
chise for  its  State  elections,  prescribe  whatever  franchise  it 
pleases  for  the  election  of  its  members  of  the  Federal  House 
of  Representatives,  and  may  thus  admit  persons  who  would  in 
other  States  be  excluded  from  the  suffrage,  or  exclude  persons 

1  Congress  may  regulate  by  statute  the  times,  places,  and  manner  of  holding 
elections  for  representatives  (Const.,  Art.  i.  §  4).  and  has  done  so  to  some 
extent. 


CHAP.  XXVIII     WORKING  OF  THE  FEDERAL  SYSTEM  327 

who  would  in  other  States  be  admitted.  For  instance,  fifteen 
States  now  allow  aliens  (i.e.  foreigners  not  yet  naturalized)  to 
vote;  and  any  State  which  should  admit  women  to  vote  at  its 
own  State  elections  (as  Wyoming  now  does)  would  thereby 
admit  them  also  to  vote  at  congressional  elections.^  The  only 
restriction  imposed  on  State  discretion  in  this  respect  is  that 
of  the  fifteenth  amendment,  which  forbids  any  person  to  be 
deprived  of  suffrage,  on  "  account  of  race,  colour,  or  previous 
condition  of  servitude."  " 

II.  The  Federal  Constitution  de^Drives  the  States  of  certain 
powers  they  would  otherwise  enjoy.  Some  of  these,  such  as 
that  of  making  treaties,  are  obviously  unpermissible,  and  such 
as  the  State  need  not  regret.^  Others,  however,  seriously  re- 
strain their  daily  action.  They  are  liable  to  be  sued  in  the 
Federal  courts  by  another  State  or  by  a  foreign  Power.  They 
cannot,  except  with  the  consent  of  Congress,  tax  exports  or 
imports,  or  in  any  case  pass  a  law  impairing  the  obligation  of  a 
contract.  They  must  surrender  fugitives  from  the  justice  of 
any  other  State.  Whether  they  have  transgressed  any  of  these 
restrictions  is  a  question  for  the  courts  of  law,  and,  if  not  in 
the  first  instance,  yet  always  in  the  last  resort  a  question  for  the 
Federal  Supreme  coiirt.  If  it  is  decided  that  they  have  trans- 
gressed, their  act,  be  it  legislative  or  executive,  is  null  and  void.* 

1  So  iu  some  States  tribal  Indians  are  permitted  to  vote.  It  is  odd  that  the 
votes  of  persons  who  are  not  citizens  of  the  United  States  miglit,  in  a  State 
where  parties  are  nearly  equal,  turn  the  choice  of  presidential  electors  in  that 
State,  and  thereby  perhaps  turn  the  presidential  election  in  the  Union. 

2  The  Constitutions  of  some  States  retain  the  old  exclusion  of  negroes  from 
the  suffrage,  and  three  exclude  natives  of  China;  but  these  provisions  are 
overridden  by  the  fifteenth  constitutional  amendment. 

3  As  the  States  had  not  been  accustomed  to  act  as  sovereign  commonwealths 
in  international  affairs,  they  yielded  this  right  to  the  National  government 
without  demur ;  whereas  Swiss  history  shows  the  larger  cantons  to  have  been 
unwilling  to  drojj  the  practice  of  sending  their  own  envoys  to  foreign  powers 
and  making  bargains  on  their  own  behalf. 

*  Mr.  Justice  Miller  observes  (Centennial  Address  at  Philadelphia)  that  "  at 
no  time  since  the  formation  of  the  Union  has  there  been  a  period  when  there 
were  not  to  be  found  on  the  statute  books  of  some  of  the  States  acts  passed  in 
violation  of  the  provisions  of  the  Constitution  regarding  commerce,  acts  im- 
posing taxes  and  other  burdens  upon  the  free  interchange  of  commodities, 
discriminating  against  the  productions  of  other  States,  and  attempting  to  estab- 
lish regulations  of  commerce,  which  the  Constitution  says  shall  only  be  done  by 
Congress."  All  such  acts  are  of  course  held  invalid  by  the  courts  when  ques- 
tioned before  them. 

It  has  very  recently  been  held  that  a  State  cannot  forbid  a  common  carrier 


g28  THE   NATIONAL   GOVERNMENT  part  i 

The  President  as  national  executive,  and  Congress  as  national 
legislature,  have  also  received  from  the  Constitution  the  right 
of  interfering  in  certain  specified  matters  with  the  govern- 
ments of  the  States.  Congress  of  course  does  this  by  way  of 
legislation,  and  when  an  Act  of  Congress,  made  within  the 
powers  conferred  by  the  Constitution,  conflicts  with  a  State 
statute,  the  former  prevails  against  the  latter.  It  prevails  by 
making  the  latter  null  and  void,  so  that  if  a  State  statute  has 
been  duly  passed  upon  a  matter  not  forbidden  to  a  State  by 
the  Constitution,  and  subsequently  Congress  passes  an  act  on 
the  same  matter,  being  one  whereon  Congress  has  received  the 
right  to  legislate,  the  State  statute,  which  was  previously 
valid,  now  becomes  invalid  to  the  extent  to  which  it  conflicts 
with  the  Act  of  Congress.  For  instance.  Congress  has  power 
to  establish  a  uniform  law  of  bankruptcy  over  the  whole  Union. 
It  has  formerly,  in  the  exercise  of  this  power,  passed  bank- 
ruptcy laws ;  but  these  have  been  repealed,  and  at  present 
the  subject  is  left  to  the  State  laws,  which  are  accordingly  in 
full  force  in  the  several  States.^  Were  Congress  again  to 
legislate  on  the  subject,  these  State  laws  would  lose  their 
force  ;  ^  and  if  the  law  passed  by  Congress  were  again  repealed, 
they  Avould  again  spring  into  life.  The  field  of  this  so-called 
concurrent  legislation  is  large,  for  Congress  has  not  yet  exer- 
cised all  the  powers  vested  in  it  of  superseding  State  action. 

It  AA'as  remarked  in  the  last  chapter  that  in  determining  the 
powers  of  Congress  on  the  one  hand  and  of  a  State  government 
on  the  other,  opposite  methods  have  to  be  followed.  The  pre- 
sumption is  always  in  favour  of  the  State ;  and  in  order  to 
show  that  it  cannot  legislate  on  a  subject,  there  must  be 
pointed  out  within  the  four  corners  of  the  Constitution  some 
express  prohibition  of  the  right  which  it  prima  fade  possesses, 
or  some  implied  prohibition  arising  from  the  fact  that  legisla- 
tion by  it  would  conflict  with  legitimate  federal  authority.^ 

to  bring  into  its  jurisdiction  intoxicating  liquors  from  another  State  {Boioman 
V.  C.  &  N.  W.  Rly.  125  U.  S.,  p.  4(35) ;  cf.  Leisy  v.  Hardin,  135  U.  S.,  p.  100  ; 
Minnesota  v.  Barber,  136  U.  S.,  p.  313. 

1  See  the  interesting  case  of  Sturges  v.  Crowninshield,  4  Wheat.  196. 

2  And  in  this  instance  they  would  lose  their  force  altogether,  because  the 
power  of  Congress  being  to  establish  a  "uniform"  law,  the  continued  exist- 
ence of  statutes  differing  in  the  different  States  would  prevent  the  law  of 
bankruptcy  from  being  uniform  over  the  Union. 

3  Otherwise  in  the  Federal  Constitution  of  Canada.  See  Note  to  Chapter 
XXX. 


CHAP,  xxviii     WORKING  OF  THE  FEDERAL  SYSTEM  329 

On  the  other  hand,  the  presumption  is  always  against  Con- 
gress, and  to  show  that  it  can  legislate,  some  positive  grant  of 
power  to  Congress  in  the  Constitution  must  be  pointed  out.^ 
When  the  grant  is  shown,  then  the  Act  of  Congress  has,  so 
long  as  it  remains  on  the  statute  book,  all  the  force  of  the 
Constitution  itself.  In  some  instances  the  grant  of  power  to 
Congress  to  legislate  is  auxiliary  to  a  prohibition  imposed  on 
the  States.  This  is  notably  the  case  as  regards  the  amend- 
ments to  the  Constitution,  passed  for  the  protection  of  the 
lately  liberated  negroes.  They  interdict  the  States  from  either 
recognizing  slavery,  or  discriminating  in  any  way  against  any 
class  of  citizens ;  they  go  even  beyond  citizens  in  their  care, 
and  declare  that  "  no  State  shall  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws."  Now,  by  each 
of  these  amendments,  Congress  is  also  empowered,  which 
practically  means  enjoined,  to  "enforce  by  appropriate  legis- 
lation "  the  prohibitions  laid  upon  the  States.  Congress  has 
done  so,  but  some  of  its  efforts  have  been  held  to  go  beyond 
the  directions  of  the  amendments^  and  to  be  therefore  void.^ 
The  grant  of  power  has  not  covered  them. 

Where  the  President  interferes  with  a  State,  he  does  so  either 
under  his  duty  to  give  effect  to  the  legislation  of  Congress,  or 
under  the  discretionary  executive  functions  which  the  Consti- 
tution has  entrusted  to  him.  So  if  any  State  were  to  depart 
from  a  republican  form  of  government,  it  would  be  his  duty 
to  bring  the  fact  to  the  notice  of  Congress  in  order  that  the 
guarantee  of  that  form  contained  in  the  Constitution  might  be 
made  effective.  If  an  insurrection  broke  out  against  the 
authority  of  the  Union,  he  would  (as  in  1861)  send  Federal 
troops  to  suppress  it.  If  there  should  be  rival  State  govern- 
ments, each  claiming  to  be  legitimate,  the  President  might, 
especially  if  Congress  were  not  sitting,  recognize  and  support 
the  one  which  he  deemed  regular  and  constitutional.^ 

1  The  grant  need  not,  however,  be  express,  for  it  has  frequently  been  held 
that  a  power  incidental  or  instrumental  to  a  power  expressly  given  may  be  con- 
ferred upon  Congress  by  necessary  implication.  See  M'CuUoch  .v.  Maryland, 
4  Wheat,  p.  316,  and  post,  Chapter  XXXIII. 

2  See  the  Appendix  to  the  last  edition  of  Story's  Commentaries,  and  Desty's 
Constitution  of  the  United  States  Annotated. 

2  In  1874-75  a  contest  having  arisen  in  Louisiana  between  two  governments 
each  claiming  to  be  the  legal  government  of  the  State,  Federal  military  aid 
was  supplied  to  one  of  them  by  the  President,  and  his  action  was  afterwards 


330  THE  NATIONAL   GOVERNMENT 


Are  these,  it  may  be  asked,  the  only  cases  in  which  Federal 
authority  can  interfere  within  the  limits  of  a  State  to  maintain 
order  ?  Are  law  and  order,  i.e.  the  punishment  of  crimes  and 
the  enforcement  of  civil  rights,  left  entirely  to  State  authori- 
ties ?     The  answer  is  :  — 

Offences  against  Federal  statutes  are  justiciable  in  Federal 
courts,  and  punishable  under  Federal  authority.  There  is  no 
Federal  common  law  of  crimes. 

Resistance  offered  to  the  enforcement  of  a  Federal  statute 
may  be  suppressed  by  Federal  authority. 

Attacks  on  the  property  of  the  Federal  government  may  be 
repelled,  and  disturbances  thence  arising  may  be  quelled  by 
Federal  authority. 

The  judgments  pronounced  in  civil  causes  by  Federal  courts 
are  executed  by  the  officers  of  these  courts. 

All  other  offences  and  disorders  whatsoever  are  left  to  be 
dealt  with  by  the  duly  constituted  authorities  of  the  State, 
who  are,  however,  entitled  in  one  case  to  summon  the  power  of 
the  Union  to  their  aid. 

This  case  is  that  of  the  breaking  out  in  a  State  of  serious 
disturbances.  The  President  is  bound  on  the  application  of 
the  State  legislature  or  executive  to  quell  such  disturbances 
by  the  armed  forces  of  the  Union,  or  by  directing  the  militia 
of  another  State  to  enter.  Thus  in  1794  Washington  sup- 
pressed the  so-called  Whisky  Insurrection  in  Pennsylvania 
by  the  militia  of  Pennsylvania,  New  Jersey,  Virginia,  and 
Maryland.^  President  Grant  was  obliged  to  use  military  force 
during  the  troubles  which  disturbed  several  of  the  Southern 
States  after  the  Civil  War;  as  was  President  Hayes,  during 
the  tumults  in  Pennsylvania  caused  by  the  great  railway 
strikes  of  1877.  There  have,  however,  been  cases,  such  as  the 
Dorr  rebellion  in  Rhode  Island  in  1842,'  in  which  a  State  has 

approved  by  Congress.  It  has  been  doubted,  however,  whether  the  case  could 
properly  be  deemed  one  of  "  domestic  violence  "  within  the  meaning  of  Art.  iv 
§  4  of  the  Constitution. 

1  This  was  the  first  assertion  by  arms  of  the  supreme  authority  of  the  Union, 
and  produced  an  enormous  effect  upon  opinion. 

2  President  Tyler  ordered  the  militia  of  Connecticut  and  Massachusetts  to 
be  prepared  (in  case  a  requisition  came  from  the  R.  I.  executive)  to  guard  the 
frontier  of  Rhode  Island  against  insurgents  attempting  to  enter,  and  himself 
took  steps  for  sending  in  (in  case  of  need)  U.  S.  regular  troops,  but  the  Rhode 
Island  militia  proved  equal  to  the  occasion  and  succeeded  in  suppressing  Dorr. 


CHAP,  xxviii     WORKING  OF  THE  FEDERAL  SYSTEM  331 

itself  suppressed  an  insurrection  against  its  legitimate  govern- 
ment. It  is  the  duty  of  a  State  to  do  so  if  it  can,  and  to  seek 
Federal  aid  only  in  extreme  cases,  when  resistance  is  formida- 
ble. 

So  far  we  have  been  considering  the  relations  of  the  Na- 
tional government  to  the  States  as  political  communities.  Let 
us  now  see  what  are  its  relations  to  the  individual  citizens  of 
these  States.  They  are  citizens  of  the  Union  as  well  as  of 
these  States,  and  owe  allegiance  to  both  powers.  Each  power 
has  a  right  to  command  their  obedience.  To  which  then,  in 
case  of  conflict,  is  obedience  due  ? 

The  right  of  the  State  to  obedience  is  wider  in  the  area  of 
matters  which  it  covers.  Prima  facie,  every  State  law,  every 
order  of  a  competent  State  authority,  binds  the  citizen, 
whereas  the  National  government  has  but  a  limited  power :  it 
can  legislate  or  coramaiid  only  for  certain  purposes  or  on  cer- 
tain subjects.  But  within  the  limits  of  its  power,  its  authority 
is  higher  than  that  of  the  State,  and  must  be  obeyed  even  at 
the  risk  of  disobeying  the  State.  A  recent  instance  in  which 
a  State  official  suffered  for  obeying  his  State  where  its  direc- 
tions clashed  with  a  provision  of  the  Federal  Constitution  may 
set  the  point  in  a  clear  light.  A  statute  of  California  had 
committed  to  the  city  and  county  authority  of  San  Francisco 
the  power  of  making  regulations  for  the  management  of  gaols. 
This  authority  had  in  1876  passed  an  ordinance  directing  that 
every  male  imprisoned  in  the  county  gaol  should  "  immediately 
on  his  arrival  have  his  hair  clipped  to  a  uniform  length  of  one 
inch  from  the  scalp."  The  sheriff  having,  under  this  ordi- 
nance, cut  off  the  queue  of  a  Chinese  prisoner.  Ho  Ah  Kow, 
was  sued  for  damages  by  the  prisoner,  and  the  court,  holding 
that  the  ordinance  had  been  passed  with  a  special  view  to  the 
injury  of  the  Chinese,  who  consider  the  preservation  of  their 
queue  a  matter  of  religion  as  well  as  of  honour,  and  that  it 
operated  unequally  and  oppressively  upon  them,  in  contraven- 
tion of  the  fourteenth  amendment  to  the  Constitution  of  the 
United  States,  declared  the  ordinance  invalid,  and  gave  judg- 
ment against  the  sheriff.'^    Similar  subsequent  attempts  against 

1  Case  of  Ho  Ah  Kow  v.  Mattheio  Nunan  (July  1879),  5  Sawyer,  Circuit 
Court  Reports,  p.  552.  A  similar  ordinance  had  been  some  years  before  cou- 
rageously vetoed  by  Mr.  Alvord,  then  mayor  of  San  Francisco. 


332  THE   NATIONAL  GOVEENMENT  part  i 

the  Chinese,  made  under  cover  of  the  constitution  of  California 
of  1879  and  divers  statutes  passed  thereunder,  have  been 
defeated  by  the  courts. 

The  safe  rule  for  the  private  citizen  may  be  thus  expressed : 
"  Ascertain  whether  the  Federal  law  is  constitutional  (i.e.  such 
as  Congress  has  power  to  pass).  If  it  is,  conform  your  conduct 
to  it  at  all  hazards.  If  it  is  not,  disregard  it,  and  obey  the 
law  of  your  State."  This  may  seem  hard  on  the  private  citi- 
zen. How  shall  he  settle  for  himself  such  a  delicate  point  of 
law  as  whether  Congress  had  power  to  pass  a  particular  stat- 
ute, seeing  that  the  question  may  be  doubtful  and  not  have 
come  before  the  courts  ?  But  in  practice  little  inconvenience 
arises,  for  Congress  and  the  State  legislatures  have  learnt  to 
keep  within  their  respective  spheres,  and  the  questions  that 
arise  between  them  are  seldom  such  as  need  disturb  an  ordi- 
nary man. 

The  same  remarks  apply  to  conflicts  between  the  commands 
of  executive  officers  of  the  National  government  on  the  one 
hand,  and  those  of  State  officials  on  the  other.  If  the  national 
officer  is  acting  within  his  constitutional  jDOwers,  he  is  entitled 
to  be  obeyed  in  preference  to  a  State  official,  and  conversely,  if 
the  State  official  is  within  his  powers,  and  the  national  officer 
acting  in  excess  of  those  which  the  Federal  Constitution  con- 
fers, the  State  official  is  to  be  obeyed. 

The  limits  of  judicial  power  are  more  difficult  of  definition. 
Every  citizen  can  sue  and  be  sued  or  indicted  both  in  the  courts 
of  his  State  and  in  the  Federal  courts,  but  in  some  classes  of 
cases  the  former,  in  others  the  latter,  is  the  proper  tribunal, 
while  in  many  it  is  left  to  the  choice  of  the  parties  before 
which  tribunal  they  will  proceed.  Sometimes  a  plaintiff  who 
has  brought  his  action  in  a  State  court  finds  when  the  case  has 
gone  a  certain  length  that  a  point  of  Federal  law  turns  up 
which  entitles  either  himself  or  the  defendant  to  transfer  it  to 
a  Federal  court,  or  to  appeal  to  such  a  court  should  the  decision 
have  gone  against  the  applicability  of  the  Federal  law.  Suits 
are  thus  constantly  transferred  from  State  courts  to  Federal 
courts,  but  no  one  can  ever  reverse  the  process  and  carry  a 
suit  from  a  Federal  court  to  a  State  court.  Within  its  proper 
sphere  of  pure  State  law,  —  and  of  course  the  great  bulk  of  the 
cases  turn  on  pure  State  law,  —  there  is  no  appeal  from  a  State 


CHAP.  XXVIII     WORKING  OF  THE  FEDERAL  SYSTEM  333 

court  to  a  Federal  court ;  and  though  the  point  of  hiw  on  which 
the  case  turns  may  be  one  which  has  arisen  and  been  decided 
in  the  Supreme  court  of  the  Union,  a  State  judge,  in  a  State 
case,  is  not  bound  to  regard  that  decision.  It  has  only  a  moral 
weight,  such  as  might  be  given  to  the  decision  of  an  English 
court,  and  where  the  question  is  one  of  State  law,  whether 
common  law  or  statute  law,  in  which  State  courts  have  decided 
one  way  and  a  Federal  court  the  other  way,  the  State  judge 
ought  to  follow  his  own  courts.  So  far  does  this  go,  that  a 
Federal  court  in  administering  State  law,  ought  to  reverse  its 
own  previous  decision  rather  than  depart  from  the  view  which 
the  highest  State  court  has  taken.^  All  this  seems  extremely 
complex.  I  can  only  say  that  it  is  less  troublesome  in  practice 
than  could  have  been  expected,  because  American  lawyers  are 
accustomed  to  the  intricacies  of  their  system. 

When  a  plaintiff  has  the  choice  of  proceeding  in  a  State 
court  or  in  a  Federal  court,  he  is  sometimes,  especially  if  he 
has  a  strong  case,  inclined  to  select  the  latter,  because  the  Fed- 
eral judges  are  more  independent  than  those  of  most  of  the 
States,  and  less  likely  to  be  influenced  by  any  bias.  So,  too, 
if  he  thinks  that  local  prejudice  may  tell  against  him,  he  will 
prefer  a  Federal  court,  because  the  jurors  are  summoned  from 
a  wider  area,  and  because  the  judges  are  accustomed  to  exert  a 
larger  authority  in  guiding  and  controlling  the  jury.  But  it  is 
usually  more  convenient  to  sue  in  a  State  court,  seeing  that 
there  is  such  a  court  in  every  county,  whereas  Federal  courts 
are  comparatively  fcAV ;  in  many  States  there  is  but  one.^ 

The  Federal  authority,  be  it  executive  or  judicial,  acts  upon 
the  citizens  of  a  State  directly  by  means  of  its  own  officers, 
who  are  quite  distinct  from  and  independent  of  the  State  offi- 
cials. Federal  indirect  taxes,  for  instance,  are  levied  all  along 
the  coast  and  over  the  country  by  Federal  custom-house  col- 
lectors and  excisemen,  acting  under  the  orders  of  the  treasury 

1  This  is  especially  the  rule  in  cases  involving  the  title  to  land.  But  though 
the  theory  is  as  stated  in  the  text,  the  Federal  courts  not  unfrequently  (espe- 
cially in  commercial  cases) ,  act  upon  their  own  view  of  the  State  law,  and  have 
sometimes  been  accused  of  going  so  far  as  to  create  a  sort  of  Federal  common 
law. 

2  Of  course  a  plaintiff  who  thinks  local  j^rejudice  will  befriend  him  will 
choose  the  State  court,  but  the  defendant  may  have  the  cause  removed  to  a 
Federal  court  if  he  be  a  citizen  of  another  State  or  an  alien,  or  if  the  question 
at  issue  is  such  as  to  give  Federal  jurisdiction. 


334  THE   NATIONAL   GOVERNMENT 


department  at  Washington.  The  judgments  of  Federal  courts 
are  carried  out  by  United  States  marshals,  likewise  dispersed 
over  the  country  and  supplied  with  a  staff  of  assistants.  This 
is  a  provision  of  the  utmost  importance,  for  it  enables  the  cen- 
tral National  government  to  keep  its  linger  upon  the  people 
everywhere,  and  make  its  laws  and  the  commands  of  its  duly 
constituted  authorities  respected  whether  the  State  within 
whose  territory  it  acts  be  heartily  loyal  or  not,  and  whether 
the  law  which  is  being  enforced  be  popular  or  obnoxious.  The 
machinery  of  the  National  government  ramifies  over  the  whole 
Union  as  the  nerves  do  over  the  human  body,  placing  every 
point  in  direct  connection  with  the  central  executive.  The 
same  is,  of  course,  true  of  the  army :  but  the  army  is  so  small 
and  stationed  in  so  few  spots,  mostly  in  the  Far  West  where 
Indian  raids  are  feared,  that  it  scarcely  comes  into  a  view  of 
the  ordinary  working  of  the  system. 

What  happens  if  the  authority  of  the  National  government 
is  opposed,  if,  for  instance,  an  execution  levied  in  pursuance 
of  a  judgment  of  a  Federal  court  is  resisted,  or  Federal  excise- 
men are  impeded  in  the  seizure  of  an  illicit  distillery? 

Supposing  the  United  States  marshal  or  other  Federal 
officer  to  be  unable  to  overcome  the  physical  force  opposed 
to  him,  he  may  summon  all  good  citizens  to  assist  him,  just 
as  the  sheriff  may  summon  the  posse  comitatus.  If  this 
appeal  proves  insufficient,  he  must  call  upon  the  President, 
who  may  either  order  national  troops  to  his  aid  or  may 
require  tlie  militia  of  the  State  in  which  resistance  is  offered 
to  overcome  that  resistance.  Inferior  Federal  officers  are 
not  entitled  to  make  requisitions  for  State  force.  The  com- 
mon law  principle  that  all  citizens  are  bound  to  assist  the 
ministers  of  the  law  holds  good  in  America  as  in  England,  but 
it  is  as  true  in  the  one  country  as  in  the  other,  that  what  is 
everybody's  business  is  nobody's  business.  Practically,  the 
Federal  authorities  are  not  resisted  in  the  more  orderly 
States  and  more  civilized  districts.  In  such  regions,  however, 
as  the  mountains  of  Tennessee,  Eastern  Kentucky,  and  North 
Carolina  the  inland  revenue  officials  find  it  very  hard  to  en- 
force the  excise  laws,  because  the  country  is  wild,  conceal- 
ment is  easy  among  the  woods  and  rocks,  and  the  population 
sides  with  the  smugglers.      And  in  some  of  the  western  States 


CHAP.  XXVIII     WOKKING  OF  THE  FEDERAL  SYSTEM  335 

an  injunction  granted  by  a  court,  whether  a  Federal  or  a  State 
court,  is  occasionally  disregarded.^  Things  were,  of  course, 
much  worse  before  the  "War  of  Secession  had  established  the 
authority  of  the  central  government  on  an  immovable  basis. 
Federal  law  did  not  prove  an  unquestioned  protection  either  to 
persons  who  became  in  some  districts  unpopular  from  preaching 
Abolitionism,  or  to  those  Southern  slave-catchers,  who  endea- 
voured, under  the  Fugitive  Slave  laws,  to  recapture  in  the 
northern  States  slaves  who  had  escaped  from  their  masters.^ 
Passion  ran  high,  and  great  as  is  the  respect  for  law,  passion 
in  America,  as  everywhere  else  in  the  world,  will  have  its  way. 

If  the  duly  constituted  authorities  of  a  State  resist  the  laws 
and  orders  of  the  National  government,  a  more  difficult  ques- 
tion arises.     This  has  several  times  happened. 

In  November  1798  the  legislature  of  Kentucky  adopted 
resolutions  declaring  that  the  Constitution  was  not  a  sub- 
mission of  the  States  to  a  general  government,  but  a  compact 
whereby  they  formed  such  a  government  for  special  purposes 
and  delegated  to  it  certain  definite  powers ;  that  when  the 
general  government  assumed  undelegated  powers,  its  acts  were 
unauthoritative  and  void ;  and  that  it  had  not  been  made  the 
exclusive  or  final  judge  of  the  extent  of  the  powers  delegated 
to  it.  Five  weeks  later  the  Virginia  legislature  passed 
similar  but  more  guarded  resolutions,  omitting,  inter  alia,  the 
last  of  the  above  mentioned  deliverances  of  Kentucky.  Both 
States  went  on  to  declare  that  the  Sedition  and  Alien  Acts 
recently  passed  by  Congress  were  unconstitutional,  and  asked 
the  other  States  to  join  in  this  pronouncement  and  to  co-oper- 
ate in  securing  the  repeal  of  the  statutes.^  Seven  States 
answered,  all  in  an  adverse  sense. 

1  The  attacks  upon  the  Chinese  which  Federal  authorities  have  had  to  check 
have  mostly  taken  place  not  in  States  but  in  Territories  (such  as  Washington 
and  Montana  till  recently  were),  where  the  direct  power  of  the  Federal  Gov- 
ernment is  greater  than  in  a  State.    See  Chapter  XLVII. 

2  It  was  held  that  a  State  could  not  authorize  its  courts  to  enforce  the  Fugi- 
tive Slave  laws.  Being  Federal  statutes,  their  enforcement  belonged  to  the 
National  government  only.     Consider  Prigg  v.  Pennsylvania,  16  Pet.  539. 

3  There  have  been  endless  discussions  in  America  as  to  the  true  meaning  and 
intent  of  these  famous  resolutions,  a  lucid  account  of  which  may  be  found  in 
the  article  (by  Mr.  Alex.  Johnston)  "  Kentucky  Resolutions,"  in  the  American 
Cyclopaedia  of  Political  Science.  The  Kentucky  resolutions  were  drafted  by 
Jefferson,  who  however  did  not  acknowledge  his  authorship  till  1821,  the  Vir- 
ginia resolutions  by  the  more  cautious  Madison.    Those  who  defend  Jefferson's 


330  THE   NATIONAL   GOVERNMENT 


In  1808  the  legislatures  of  some  of  the  New  England  States 
passed  resolutions  condemning  the  embargo  which  the  National 
government  had  laid  upon  shipping  by  an  Act  of  that  year. 
The  State  judges,  emboldened  by  these  resolutions,  took  an 
attitude  consistently  hostile  to  the  embargo,  holding  it  to  be 
unconstitutional;    popular   resistance   broke  out  in  some  of 
the  coast  towns ;  and  the  Federal  courts  in  New  England  sel- 
dom succeeded  in  finding  juries   which  would  convict  even 
for  the  most  flagrant  violation  of  its  provisions.     At  the  out- 
break of  the  war  of  1812  the  governors  of  Massachusetts  and 
Connecticut  refused  to  allow  the  State  militia  to  leave  their 
State  in  pursuance  of  a  requisition  made  by  the  President 
under   the   authority   of    an   Act   of   Congress,    alleging   the 
requisition  to  be  unconstitutional;  and  in  October  1814  the 
legislatures  of  these  two  States  and  of  Khode  Island,  States 
in  which  the  Kevf  England  feeling  against  the  war  had  risen 
high,  sent  delegates  to  a  Convention  at  Hartford,  which,  after 
three  weeks  of  secret  session,  issued  a  report  declaring  that  "  it 
is  as  much  the  duty  of  the  State  authorities  to  watch  over  the 
rights  reserved  as  of  the  United  States  to  exercise  the  powers 
delegated,"  laying  down  doctrines  substantially  similar  to  those 
of   the   Kentucky    resolutions,   and   advising   certain   amend- 
ments to  the  Federal  Constitution,  with  a  menace  as  to  fur- 
ther action  in  case  these  should  be  rejected.     Massachusetts 
and  Connecticut  adopted  the    report;   but  before  their  com- 
missioners   reached   Washington,    peace   with    Great   Britain 
had  been  concluded.     In  1828-30  Georgia  refused  to  obey  an 
Act   of    Congress   regarding   the   Cherokee   Indians,    and   to 
respect  the  treaties  which  the  United  States  had  made  with 
that  tribe  and  the  Creeks.     The  Georgian  legislature  passed 
and   enforced   Acts   in   contempt  of   Federal   authority,   and 
disregarded  the  orders  of  the  Supreme  court,  President  Jack- 
son, who  had   an  old  frontiersman's  hatred  to  the   Indians, 
declining  to  interfere. 

action  argue,  and  probably  rightly,  that  what  he  aimed  at  was  not  forcible 
resistance,  but  the  amendment  of  the  Constitution  so  as  to  negative  the  con- 
struction that  was  being  put  upon  it  by  tlie  Federalists. 

Judge  Cooley  observes  to  me,  "The  most  authoritative  exponents  of  the 
States'  Rights  creed  would  probably  have  said  that  'the  nullification  by  the 
States  of  all  unauthorized  acts  done  under  cover  of  the  Constitution  '  intended 
by  the  Resolutions,  was  a  nullification  by  constitutional  means." 


CHAP.  XXVIII     WORKING  OF  THE  FEDERAL  SYSTEM  337 

Finally,  in  1832,  South  Carolina,  first  in  a  State  convention 
and  then  by  her  legislature,  amplified  while  professing  to  repeat 
the  claim  of  the  Kentucky  resolutions  of  1798,  declared  the 
tariff  imposed  by  Congress  to  be  null  and  void  as  regarded  her- 
self, and  proceeded  to  prepare  for  secession  and  war.  In  none 
of  these  cases  was  the  dispute  fought  out  either  in  the  courts  or 
in  the  field  ^ ;  and  the  questions  as  to  the  right  of  a  State  to 
resist  Federal  authority,  and  as  to  the  means  whereby  she  could 
be  coerced,  were  left  over  for  future  settlement.  Settled  they 
finally  were  by  the  Civil  War  of  1861-65,  since  which  time  the 
following  doctrines  may  be  deemed  established :  — 

No  State  has  a  right  to  declare  an  act  of  the  Federal  govern- 
ment invalid." 

No  State  has  a  right  to  secede  from  the  Union. 

The  only  authority  competent  to  decide  finally  on  the  con- 
stitutionality of  an  act  of  Congress  or  of  the  national  executive 
is  the  Federal  judiciary.^ 

Any  act  of  a  State  legislature  or  a  State  executive  conflicting 
with  the  Constitution,  or  with  an  act  of  the  jSTational  govern- 
ment done  under  the  Constitution,  is  really  an  act  not  of  the 
State  government,  which  cannot  legally  act  against  the  Consti- 
tution, but  of  persons  falsely  assuming  to  act  as  such  govern- 

1  The  Acts  complained  of  ])y  Kentucky  and  Virginia  provolced  a  reaction 
which  led  to  the  overthrow  of  the  Federalist  party  which  liad  passed  them. 
Of  the  most  important  among  them,  one  was  repealed  and  the  other,  the  Sedi- 
tion Act,  expired  in  1801  hy  effluxion  of  time.  Jefferson,  when  he  hecame 
President  in  that  year,  showed  his  disapproval  of  it  by  pardoning  persons  con- 
victed under  it.  The  Embargo  was  raised  by  Congress  in  consequence  of  the 
strong  opposition  of  New  England.  In  these  cases,  therefore,  it  may  be 
thought  that  the  victory  substantially  remained  with  the  jirotesting  States, 
while  the  resistance  of  South  Carolina  to  the  tariff  was  settled  by  a  com- 
promise. 

2  Of  course,  as  already  observed,  a  State  officer  or  a  private  citizen  may  dis- 
regard an  act  of  the  Federal  government  if  he  holds  it  unconstitutional.  But 
he  does  so  at  his  peril. 

3  Any  court.  State  or  Federal,  may  decide  on  such  a  question  in  the  first  in- 
stance. But  if  the  question  be  a  purely  political  one,  it  may  be  incapable  of 
being  decided  by  any  court  whatever  (see  Chapter  XXIV.),  and  in  such  cases 
the  decision  of  the  political  departments  (Congress  or  the  President,  as  the 
case  may  be)  of  the  Federal  government  is  necessarily  final,  though,  of  course, 
liable  to  be  reversed  by  a  sul)sequent  Congress  or  President.  The  cases  which 
arose  on  the  Reconstruction  Acts,  after  the  War  of  Secession,  afford  an  illus- 
tration. The  attempts  made  to  bring  these  before  the  courts  failed,  and  the 
acts  were  enforced.     See  Georrjia  v.  Stanton,  6  Wall.  p.  57. 

VOL.  I  Z 


338  THE   NATIONAL   GOVERNMENT 


meut,  and  is  therefore  ipso  jure  void.^  Those  who  disobey 
Federal  authority  on  the  ground  of  the  commands  of  a  State 
authority  are  therefore  insurgents  against  the  Union  who  must 
be  coerced  by  its  power.  The  coercion  of  such  insurgents  is 
directed  not  against  the  State  but  against  them  as  individual 
though  combined  wrongdoers.  A  State  cannot  secede  and  can- 
not rebel.     Similarly,  it  cannot  be  coerced. 

This  view  of  the  matter,  which  seems  on  the  whole  to  be  that 
taken  by  the  Supreme  court  in  the  cases  that  arose  after  the 
Civil  War,  disposes,  as  has  been  well  observed  by  Judge  Hare,^ 
of  the  difficulty  which  President  Buchanan  felt  (see  his  mes- 
sage of  3d  December  1860)  as  to  the  coercion  of  a  State  by  the 
Union.  He  argued  that  because  the  Constitution  did  not  pro- 
vide for  such  coercion,  a  proposal  in  the  Convention  of  1787  to 
authorize  it  having  been  ultimately  dropped,  it  was  legally 
impossible.  The  best  answer  to  this  contention  is  that  such  a 
provision  Avould  have  been  superfluous,  because  a  State  cannot 
legally  act  against  the  Constitution.  All  that  is  needed  is  the 
power,  unquestionably  contained  in  the  Constitution  (Art.  iii. 
§  3),  to  subdue  and  punish  individuals  guilty  of  treason  against 
the  Union. ^ 

Except  in  the  cases  which  have  been  already  specified,  the 
National  government  has  no  right  whatever  of  interfering  either 
with  a  State  as  a  commonwealth  or  with  the  individual  citizens 
thereof,  and  may  be  laAvfully  resisted  should  it  attempt  to  do 
so. 

"  What  then  ? "  the  European  reader  may  ask.  "  Is  the 
National  government  without  the  power  and  the  duty  of  correct- 
ing the  social  and  political  evils  which  it  may  find  to  exist  in  a 
particular  State,  and  which  a  vast  majority  of  the  nation  may 
condemn  ?     Suppose  widespread  brigandage  to  exist  in  on§  of 

1  It  may,  however,  happen  that  a  State  law  is  unconstitutional  in  part  only, 
perliaps  in  some  trifling  details,  and  in  such  cases  that  part  only  will  he  invalid, 
and  the  rest  of  the  law  will  he  upheld.  For  instance,  a  criminal  statute  might 
be  framed  so  as  to  apply  retrospectively  as  well  as  prospectively.  So  far  as 
retrospective  it  would  be  bad,  but  good  for  all  future  cases.  (See  Const.,  Art. 
i  §  10,  par.  1.) 

2  American  Constitutional  Law,  p.  61. 

3  Swiss  practice  allows  the  Federal  government  to  coerce  a  disobedient  can- 
ton. This  is  commonly  done  by  quartering  Federal  troops  in  it  at  its  expense 
till  its  government  yields  — a  form  of  coercion  which  Swiss  frugality  dislikes 
—  or  by  withholding  its  share  of  Federal  grants. 


CHAP,  xxviii     WORKING  OF  THE  FEDERAL  SYSTEM  339 

the  States,  endangering  life  and  property.  Suppose  contracts 
to  be  habitually  broken,  and  no  redress  to  be  obtainable  in  the 
State  courts.  Suppose  the  police  to  be  in  league  with  the 
assassins.  Suppose  the  most  mischievous  laws  to  be  enacted, 
laws,  for  instance,  which  recognize  polygamy,  leave  homicide 
unpunished,  drive  away  capital  by  imposing  upon  it  an  intoler- 
able load  of  taxation.  Is  the  nation  obliged  to  stand  by  with 
folded  arms  while  it  sees  a  meritorious  minority  oppressed,  the 
prosperity  of  the  State  ruined,  a  pernicious  example  set  to  other 
States  ?  Is  it  to  be  debarred  from  using  its  supreme  author- 
ity to  rectify  these  mischiefs  ?  " 

The  answer  is,  Yes.  Unless  the  legislation  or  administra- 
tion of  such  a  State  transgresses  some  provision  of  the  Federal 
Constitution  (such  as  that  forhidding  ex  j^ost  facto  laws,  or  laws 
impairing  the  obligation  of  a  contract),  the  National  govern- 
ment not  only  ought  not  to  interfere  but  cannot  interfere.  The 
State  must  go  its  own  way,  with  whatever  injury  to  private 
rights  and  common  interests  its  folly  or  perversity  may  cause. 

Such  a  case  is  not  imaginary.  In  the  Slave  States  before 
the  war,  although  the  negroes  were  not,  as  a  rule,  harshly 
treated,  many .  shocking  laws  were  passed,  and  society  was 
going  from  bad  to  worse.  In  parts  of  a  few  of  the  western 
States  at  this  moment,  the  roads  and  even  the  railways  are 
infested  by  robbers,  justice  is  uncertain  and  may  be  unattaina- 
ble when  popular  sentiment  does  not  support  the  laAV.  Homi- 
cide often  goes  unpunished  by  the  courts,  though  sometimes 
punished  by  Judge  Lynch.  So,  too,  in  a  few  of  these  States 
statutes  opposed  to  sound  principles  of  legislation  have  been 
passed,  and  have  brought  manifold  evils  in  their  -train.  But 
the  Federal  government  looks  on  unperturbed,  with  no  remorse 
for  neglected  duty. 

The  obvious  explanation  of  this  phenomenon  is  that  the 
large  measure  of  independence  left  to  the  States  under  the 
Federal  system  makes  it  necessary  to  tolerate  their  misdoings 
in  some  directions.  As  a  distinguished  authority  ^  observes  to 
me,  "The  Federal  Constitution  provided  for  the  protection  of 
contracts,  and  against  those  oppressions  most  likely  to  result 
from  popular  passion  and  demoralization ;  and  if  it  had  been 
proposed  to  go  further  and  give  to  the  Federal  authority  a 
1  Judge  Cooley. 


340  THE   NATIONAL   GOVERNMENT 


power  to  intervene  in  still  more  extreme  cases,  the  answer 
would  probably  have  been  that  such  cases  were  far  less  likely 
to  arise  than  was  the  Federal  power  to  intervene  improperly 
under  the  pressure  of  party  passion  or  policy,  if  its  interven- 
tion were  permitted.  To  have  authorized  such  intervention 
would  have  been  to  run  counter  to  the  whole  spirit  of  the 
Constitution,  which  kept  steadily  in  view  as  the  wisest  policy 
local  government  for  local  affairs,  general  government  for 
general  affairs  only.  Evils  would  unquestionably  arise.  But 
the  Philadelphia  Convention  believed  that  they  would  be  kept 
at  a  minimum  and  most  quickly  cured  by  strict  adherence  to 
this  policy.  The  scope  for  Federal  interference  was  consider- 
ably enlarged  after  the  Civil  War,  but  the  general  division  of 
authority  between  the  States  and  the  nation  was  not  dis- 
turbed." 

So  far  from  lamenting  as  a  fault,  though  an  unavoidable 
fault,  of  their  Federal  system,  the  State  independence  I  have 
described,  the  Americans  are  inclined  to  praise  it  as  a  merit. 
They  argue,  not  merely  that  the  best  way  on  the  whole  is  to 
leave  a  State  to  itself,  but  that  this  is  the  only  way  in  which 
a  permanent  cure  of  its  diseases  will  be  effected.  They  are 
consistent  not  only  in  their  Federal  principles  but  in  their 
democratic  principles.  "As  laissez  oiler"  they  say,  "is  the 
necessary'  course  in  a  Federal  government,  so  it  is  the  right 
course  in  all  free  governments.  Law  will  never  be  strong  or 
respected  unless  it  has  the  sentiment  of  the  people  behind  it. 
If  the  people  of  a  State  make  bad  laws,  they  will  suffer  for  it. 
They  will  be  the  first  to  suffer.  Let  them  suffer.  Suffering, 
and  nothing  else,  will  implant  that  sense  of  responsibility 
which  is  the  first  step  to  reform.  Therefore  let  them  stew  in 
their  own  juice  :  let  them  make  their  bed  and  lie  upon  it.  If 
they  drive  capital  away,  there  Avill  be  less  work  for  the  arti- 
sans :  if  they  do  not  enforce  contracts,  trade  will  decline,  and 
the  evil  will  work  out  its  remedy  sooner  or  later.  Perhaps  it 
will  be  later  rather  than  sooner :  if  so,  the  experience  will  be 
all  the  more  conclusive.  Is  it  said  that  the  minority  of  wise 
and  peaceable  citizens  may  suffer?  Let  them  exert  them- 
selves to  bring  their  fellows  round  to  a  better  mind.  Eeason 
and  experience  will  be  on  their  side.  We  cannot  be  democrats 
by  halves ;  and  where  self-government  is  given,  the  majority 


CHAP.  XXVIII     WORKING  OF   THE   FEDERAL   SYSTEM  341 

of  the  community  must  rule.  Its  rule  will  in  the  end  be 
better  than  that  of  any  external  power."  No  doctrine  more 
completely  pervades  the  American  people,  the  instructed  as 
well  as  the  uninstructed.  Philosophers  will  tell  you  that  it  is 
the  method  by  which  Nature  governs,  in  whose  economy  error 
is  followed  by  pain  and  suffering,  whose  laws  carry  their  own 
sanction  with  them.  Divines  will  tell  you  that  it  is  the 
method  by  which  God  governs  :  God  is  a  righteous  Judge  and 
God  is  provoked  every  day,  yet  He  makes  His  sun  to  rise  on 
the  evil  and  the  good,  and  sends  His  rain  upon  the  just  and 
the  unjust.  He  does  not  directly  intervene  to  punish  faults, 
but  leaves  sin  to  bring  its  own  appointed  penalty-.  Statesmen 
will  point  to  the  troubles  which  followed  the  attempt  to  govern 
the  reconquered  seceding  States,  first  by  military  force  and 
then  by  keeping  a  great  part  of  their  population  disfranchised. 
and  will  declare  that  such  evils  as  still  exist  in  the  South  are 
far  less  grave  than  those  which  the  denial  of  ordinary  self- 
government  involved.  •''  So,"  they  pursue,  '•'  Texas  and  Cali- 
fornia will  in  time  unlearn  their  bad  habits  and  come  out  right 
if  we  leave  them  alone :  Federal  interference,  even  had  we  the 
machinery  needed  for  prosecuting  it,  would  check  the  natural 
process  by  which  the  better  elements  in  these  raw  communi- 
ties are  purging  away  the  maladies  of  youth,  and  reaching  the 
settled  health  of  manhood." 

A  European  may  say  that  there  is  a  dangerous  side  to  this 
application  of  democratic  faith  in  local  majorities  and  in 
Icdssez  oiler.  Doubtless  there  is  :  yet  those  who  have  learnt  to 
know  the  Americans  will  answer  that  no  nation  better  under- 
stands its  own  business. 


CHAPTER  XXIX 

CRITICISM    OF    THE    FEDERAL    SYSTEM 

All  Americans  have  long  been  agreed  that  the  only  possible 
form  of  government  for  their  country  is  a  Federal  one.  All 
have  perceived  that  a  centralized  system  would  be  inexpedient, 
if  not  unAvorkable,  over  so  large  an  area,  and  have  still  more 
strongly  felt  that  to  cut  up  the  continent  into  absolutely  inde- 
pendent States  would  not  only  involve  risks  of  war  but  injure 
commerce  and  retard  in  a  thousand  ways  the  material  develop- 
ment of  every  part  of  the  country.  But  regarding  the  nature 
of  the  Federal  tie  that  ought  to  exist  there  have  been  keen 
and  frequent  controversies,  dormant  at  present,  but  which 
might  break  out  afresh  should  there  arise  a  new  question  of 
social  or  economic  change  capable  of  bringing  the  powers  of 
Congress  into  collision  with  the  wishes  of  any  State  or  group 
of  States.  The  general  suitability  to  the  country  of  a  Federal 
system  is  therefore  accepted,  and  need  not  be  discussed.  I  pass 
to  consider  the  strong  and  weak  points  of  that  which  exists. 

The  faults  generally  charged  on  federations  as  compared  with 
unified  governments  are  the  following  :  — 

I.  Weakness  in  the  conduct  of  foreign  affairs. 

II.  Weakness  in  home  government,  that  is  to  say,  deficient 
authority  over  the  component  States  and  the  individual 
citizens. 

III.  Liability  to  dissolution  by  the  secession  or  rebellion  of 
States. 

IV.  Liability  to  division  into  groups  and  factions  by  the 
formation  of  separate  combinations  of  the  component  States. 

V.  Want  of  uniformity  among  the  States  in  legislation  and 
administration. 

VI.  Trouble,  expense,  and  delay  due  to  the  complexity  of  a 
double  system  of  legislation  and  administration. 

342 


CHAP.  XXIX     CRITICISM   OF   THE   FEDERAL   SYSTEM  343 

The  first  four  of  these  are  all  clue  to  the  same  cause,  viz.  the 
existence  within  one  government,  which  ought  to  be  able  to 
speak  and  act  in  the  name  and  with  the  united  strength  of  the 
nation,  of  distinct  centres  of  force,  organized  political  bodies 
into  which  part  of  the  nation's  strength  has  flowed,  and  whose 
resistance  to  the  will  of  the  majority  of  the  whole  nation  is 
likely  to  be  more  effective  than  could  be  the  resistance  of  in- 
dividuals, because  such  bodies  have  each  of  them  a  government, 
a  revenue,  a  militia,  a  local  patriotism  to  unite  them,  whereas 
individual  recalcitrants,  liowever  numerous,  would  be  unor- 
ganized, and  less  likely  to  find  a  legal  standing  ground  for 
opposition.  The  gravity  of  the  first  two  of  the  four  alleged 
faults  has  been  exaggerated  by  most  writers,  who  have  assumed, 
on  insufficient  grounds,  that  Federal  governments  are  neces- 
sarily weak.  Let  us,  hoAvever,  see  how  far  America  has  ex- 
perienced such  troubles  from  these  features  of  a  Federal  system. 

I,  In  its  early  years,  the  Union  was  not  successful  in  the  man- 
agement of  its  foreign  relations.  Few  popular  governments 
are,  because  a  successful  foreign  policy  needs  in  a  world  such  as 
ours  conditions  which  popular  governments  seldom  enjoy.  In 
the  days  of  Adams,  Jefferson,  and  Madison,  the  Union  put  up 
with  a  great  deal  of  ill-treatment  from  France  as  well  as  from 
England.  It  drifted  rather  than  steered  into  the  war  of  1812. 
The  conduct  of  that  war  was  hampered  by  the  opposition  of  the 
New  England  States.  The  Mexican  war  of  1846  was  due  to 
the  slaveholders ;  but  as  the  combination  among  the  Southern 
leaders  which  entrapped  the  nation  into  that  conflict  might 
have  been  equally  successful  in  a  unified  country,  the  blame 
need  not  be  laid  at  the  door  of  Federalism.  Of  late  years  the 
principle  of  abstention  from  Old  World  complications  has  been 
so  heartily  and  consistently  adhered  to  that  the  capacities  of 
the  Federal  system  for  the  conduct  of  foreign  affairs  have  been 
little  tried;  and  the  likelihood  of  any  danger  from  abroad  is  so 
slender  that  it  may  be  practically  ignored.  But  when  a  ques- 
tion of  external  policy  arises  which  interests  only  one  part  of 
the  Union,  the  existence  of  States  feeling  themselves  specially 
affected  is  apt  to  have  a  strong  and  probably  an  unfortunate 
influence.  Only  in  this  way  can  the  American  government  be 
deemed  likely  to  suffer  in  its  foreign  relations  from  its  Federal 
character. 


344  THE  NATIONAL   GOVERNMENT 


II.  For  the  purposes  of  domestic  government  the  Federal 
authority  is  now,  in  ordinary  times,  sulhciently  strong.  How- 
ever, as  was  remarked  in  last  chapter,  there  have  been  occa- 
sions when  the  resistance  of  even  a  single  State  disclosed  its 
weakness.  Had  a  man  less  vigorous  than  Jackson  occupied 
the  presidential  chair  in  1832,  South  Carolina  would  probably 
have  prevailed  against  the  Union.  In  the  Kansas  troubles  of 
1855-56  the  national  executive  played  a  sorry  part ;  and  even 
in  the  resolute  hands  of  President  Grant  it  was  hampered  in 
the  re-establishment  of  order  in  the  reconquered  southern 
States  by  the  rights  which  the  Federal  Constitution  secured  to 
those  States.  The  only  general  conclusion  on  this  point  which 
can  be  drawn  from  history  is  that  while  the  central  govern- 
ment is  likely  to  find  less  and  less  difficulty  in  enforcing  its 
will  against  a  State  or  disobedient  subjects,  because  the  pres- 
tige of  its  success  in  the  Civil  War  has  strengthened  it,  and 
the  facilities  of  communication  make  the  raising  and  moving  of 
troops  more  easy,  nevertheless  recalcitrant  States,  or  groups  of 
States,  still  enjoy  certain  advantages  for  resistance,  advantages 
due  partly  to  their  legal  position,  partly  to  their  local  senti- 
ment, which  rebels  might  not  have  in  unified  countries  like 
England,  France,  or  Italy. 

III.  Everybody  knows  that  it  was  the  Federal  system  and 
the  doctrine  of  State  sovereignty  grounded  thereon,  and  not 
expressly  excluded,  though  certainly  not  recognized,  by  the 
Constitution,  which  led  to  the  secession  of  1861,  and  gave 
European  powers  a  plausible  ground  for  recognizing  the  insur- 
gent minority  as  belligerents.  Nothing  seems  now  less  prob- 
able than  another  secession,  not  merely  because  the  supposed 
legal  basis  for  it  has  been  abandoned,  and  because  the  advan- 
tages of  continued  union  are  more  obvious  than  ever  before, 
but  because  the  precedent  of  the  victory  won  by  the  North 
will  discourage  like  attempts  in  the  future.^  This  is  so  strongly 
felt  that  it  has  not  even  been  thought  worth  while  to  add  to 
the  Constitution  an  amendment  negativing  the  right  to  secede. 
The  doctrine  of  the  legal  indestructibility  of  the  Union  is  now 

1  The  Roman  Catholic  cantons  of  Switzerland  (or  rather  the  majority  of 
them)  formed  a  separate  league  (the  so-called  Sonderl)uud)  which  it  needed 
the  war  of  1847  to  xnit  down.  And  the  effect  of  that  war  was,  as  in  the  par- 
allel case  of  America,  to  tighten  the  Federal  hond  for  the  future. 


CHAP.  XXIX     CRITICISM   OF   THE   FEDERAL   SYSTEM  345 

well  established.     To  establisli  it,  however,  cost  thousands  of 
millions  of  dollars  and  the  lives  of  a  million  of  men. 

IV.  The  combina;tion  of  States  into  groups  was  a  familiar 
feature  of  j)olitics  before  the  war.  South  Carolina  and  the 
Gulf  States  constituted  one  such,  and  the  most  energetic, 
group;  the  New  England  States  frequently  acted  as  another, 
especially  during  the  war  of  1812.  At  present,  though  there 
are  several  sets  of  States  whose  common  interests  lead  their 
representatives  in  Congress  to  act  together,  it  is  no  longer  the 
fashion  for  States  to  combine  in  an  official  way  through  their 
State  organizations,  and  their  doing  so  would  excite  reprehen- 
sion. It  is  easier,  safer,  and  more  effective  to  act  through  the 
great  national  parties.  Any  considerable  State  interest  (such 
as  that  of  the  silver-miners  or  cattle-men,  or  Protectionist 
manufacturers)  can  generally  compel  a  party  to  conciliate  it 
by  threatening  to  forsake  the  party  if  neglected.  Political 
action  runs  less  in  State  channels  than  it  did  formerly,  and 
the  only  really  threatening  form  which  the  combined  action  of 
States  could  take,  that  of  using  for  a  common  disloyal  purpose 
State  revenues  and  the  machinery  of  State  governments,  has 
become,  since  the  failure  of  secession,  most  improbable. 

It  has  been  a  singular  piece  of  good  fortune  that  lines  of 
religious  difference  have  never  happened  to  coincide  Avith  State 
lines ;  nor  has  any  particular  creed  ever  dominated  any  group 
of  States.  The  religious  forces  which  in  some  countries  and 
times  have  given  rise  to  grave  civil  discord,  have  in  America 
never  weakened  the  Federal  fabric. 

V.  The  want  of  uniformity  in  private  law  and  methods  of 
administration  is  an  evil  which  different  minds  will  judge  by 
different  standards.  Some  may  think  it  a  positive  benefit  to 
secure  a  variety  Avhich  is  interesting  in  itself  and  makes  pos- 
sible the  trying  of  experiments  from  Avhich  the  whole  country 
may  profit.  Is  variety  within  a  country  more  a  gain  or  a  loss? 
Diversity  in  coinage,  in  weights  and  measures,  in  the  rules 
regarding  bills  and  cheques  and  banking  and  commerce  gener- 
ally, is  obviously  inconvenient.  Diversity  in  dress,  in  food,  in 
the  habits  and  usages  of  society,  is  almost  as  obviously  a  thing 
to  rejoice  over,  because  it  diminishes  the  terrible  monotony  of 
life.  Diversity  in  religious  opinion  and  worship  excited  horror 
in  the  Middle  Ages,  but  now  passes  unnoticed,  except  where 


346  THE   NATIONAL   GOVERNMENT  part  i 

governments  care  intolerant.  In  the  United  States  the  possible 
diversity  of  laws  is  immense.  Subject  to  a  few  prohibitions 
contained  in  the  Constitution,  each  State  'can  play  whatever 
tricks  it  pleases  with  the  law  of  family  relations,  of  inher- 
itance, of  contracts,  of  torts,  of  crimes.  But  the  actual  diver- 
sity is  not  great,  for  all  the  States,  save  Louisiana,  have  taken 
the  English  common  and  statute  law  of  1776  as  their  point  of 
departure,  and  have  adhered  to  its  main  principles.  A  more 
complete  uniformity  as  regards  marriage  and  divorce  might  be 
desirable,  for  it  is  particularly  awkward  not  to  know  whether 
you  are  married  or  not,  nor  whether  you  have  been  or  can  be 
divorced  or  not;  and  several  States  have  tried  bold  experiments 
in  divorce  laws.^  But,  on  the  whole,  far  less  inconvenience 
than  could  have  been  expected  seems  to  be  caused  by  the  vary- 
ing laws  of  different  States,  partly  because  commercial  law  is 
the  department  in  which  the  diversity  is  smallest,  partly  because 
American  practitioners  and  judges  have  become  expert  in  apply- 
ing the  rules  for  determining  which  law,  where  those  of  differ- 
ent States  are  in  question,  ought  to  be  deemed  to  govern  a  given 
case.^  However,  eight  States  have  very  recently  taken  steps  to 
reduce  this  diversity  by  appointing  Commissions,  instructed  to 
meet  and  confer  as  to  the  best  means  of  securing  uniform  State 
legislation  on  some  important  subjects. 

VI.  He  who  is  conducted  over  an  iron-clad  warship,  and  sees 
the  infinite  intricacy  of  the  machinery  and  mechanical  appli- 
ances which  it  contains  and  by  which  its  engines,  its  guns,  its 
turrets,  its  torpedoes,  its  apparatus  for  anchoring  and  making 
sail,  are  worked,  is  apt  to  think  that  it  must  break  down  in  the 
rough  practice  of  war.  He  is  told,  however,  that  the  more  is 
done  by  machinery,  the  more  safely  and  easily  does  everything 
go  on,  because  the  machinery  can  be  relied  on  to  work  accurately, 
and  the  performance  by  it  of  the  heavier  work  leaves  the  crew 

1  There  is,  however,  little  suhstantial  diversity  in  the  laws  of  marriage  in 
different  States,  the  rule  everywhere  prevailing  that  no  special  ceremony  is 
requisite,  and  the  statutory  forms  not  being  deemed  imperative.  Even  as 
regards  divorce  more  trouble  arises  from  frauds  practised  on  the  laws  than 
from  divergent  provisions  in  the  laws  themselves. 

2  Although  the  law  of  Scotland  still  differs  in  many  material  points  from 
that  of  England  and  Ireland,  having  had  a  different  oi'igin,  British  subjects 
and  courts  do  not  find  the  practical  inconveniences  arising  from  the  diversities 
to  be  serious  except  as  respects  marriage  and  the  succession  to  property.  The 
mercantile  law  of  the  two  countries  tends  to  become  practically  the  same. 


CHAP.  XXIX     CRITICISM   OF   THE   FEDERAL   SYSTEM  347 

free  to  attend  to  the  general  management  of  the  vessel  and  her 
armament.  So  in  studying  the  elaborate  devices  with  which 
the  Federal  system  of  the  United  States  has  been  equipped, 
one  fancies  that  Avith  so  many  authorities  and  bodies  whose 
functions  are  intricately  interlaced,  and  some  of  which  may 
collide  with  others,  there  must  be  a  great  risk  of  break-downs 
and  deadlocks,  not  to  speak  of  an  expense  much  exceeding 
that  which  is  incident  to  a  simple  centralized  government.  In 
America,  however,  smoothness  of  working  is  secured  by  elabo- 
ration of  device ;  and  complex  as  the  mechanism  of  the  govern- 
ment may  appear,  the  citizens  have  grown  so  familiar  with  it 
that  its  play  is  smooth  and  easy,  attended  with  less  trouble, 
and  certainly  with  less  suspicion  on  the  part  of  the  people, 
than  would  belong  to  a  scheme  which  vested  all  powers  in  one 
administration  and  one  legislature.  The  expense  is  admitted, 
but  is  considered  no  grave  defect  when  compared  with  the 
waste  which  arises  from  untrustworthy  officials  and  legislators 
whose  depredations  would,  it  is  thought,  be  greater  were  their 
sphere  of  action  wider,  and  the  checks  upon  them  fewer.  He 
Avho  examines  a  system  of  government  from  without  is  gener- 
ally disposed  to  overrate  the  difficulties  in  working  which  its 
complexity  causes.  Few  things,  for  instance,  are  harder  than 
to  explain  to  a  person  who  has  not  been  a  student  in  one  of 
the  two  ancient  English  universities  the  nature  of  their  highly 
complex  constitution  and  the  relation  of  the  colleges  to  the 
university.  If  he  does  apprehend  it  he  pronounces  it  too  in- 
tricate for  the  purposes  it  has  to  serve.  To  those  who  have 
grown  up  under  it,  nothing  is  simpler  and  more  obvious. 

There  is  a  blemish  characteristic  of  the  American  federation 
which  Americans  seldom  notice  because  it  seems  to  them  un- 
avoidable. This  is  the  practice  in  selecting  candidates  for  Fed- 
eral office  of  regarding  not  so  much  the  merits  of  the  candidate 
as  the  effect  which  his  nomination  will  have  upon  the  vote  of 
the  State  to  which  he  belongs.  Second-rate  men  are  run  for 
first-rate  posts,  not  because  the  party  which  runs  them  overrates 
their  capacity,  but  because  it  expects  to  carry  their  State  either 
by  their  local  influence  or  through  the  pleasure  which  the  State 
feels  in  the  prospect  of  seeing  one  of  its  own  citizens  in  high 
office.  This  of  course  works  in  favour  of  the  politicians  who 
come  from  a  largfe   State.     No   doubt  the  leadins:  men  of  a 


348  THE   NATIONAL   GOVERNMENT  part  i 

large  State  are  prima  fade  more  likely  to  be  men  of  high 
ability  than  those  of  a  small  State,  because  the  field  of  choice 
is  wider,  the  competition  probably  keener.  One  is  reminded 
of  the  story  of  the  leading  citizen  in  the  isle  of  Seriphus  who 
observed  to  Theniistocles,  "You  would  not  have  been  famous 
had  you  been  born  in  Seriphus,"  to  which  Theniistocles  replied, 
"Neither  would  you  had  you  been  born  in  Athens."  The  two 
great  States  of  Virginia  and  Massachusetts  reared  one  half  of 
the  men  Avho  won  distinction  in  tlie  first  fifty  years  of  the  his- 
tory of  the  Republic.  Nevertheless  it  often  happens  that  a 
small  State  produces  a  first-rate  man,  whom  the  country  ought 
to  have  in  one  of  its  highest  places,  but  who  is  passed  over 
because  the  Federal  system  gives  great  weight  to  the  voice  of 
a  State,  and  because  State  sentiment  is  so  strong  that  the 
voters  of  a  State  Avhich  has  a  large  and  perhaps  a  doubtful 
vote  to  cast  in  national  elections,  prefer  an  inferior  man  in 
whom  they  are  directly  interested  to  a  superior  one  who  is  a 
stranger. 

I  have  left  to  the  last  the  gravest  reproach  which  Europeans 
have  been  wont  to  bring  against  Federalism  in  America.  They 
attributed  to  it  the  origin,  or  at  least  the  virulence,  of  the  great 
struggle  over  slavery  which  tried  the  Constitution  so  severely. 
That  struggle  created  parties  which,  though  they  had  adherents 
everywhere,  no  doubt  tended  more  and  more  to  become  identi- 
fied with  States,  controlling  tlie  State  organizations  and  bending 
the  State  governments  to  their  service.  It  gave  tremendous 
importance  to  legal  questions  arising  out  of  the  differences  be- 
tween the  law  of  the  Slave  States  and  the  Free  States,  questions 
which  the  Constitution  had  either  evaded  or  not  foreseen.  It 
shook  the  credit  of  the  Supreme  court  by  making  the  judicial 
decision  of  those  questions  appear  due  to  partiality  to  the 
Slave  States.  It  disposed  the  extreme  men  on  both  sides  to 
hate  the  Federal  Union  which  bound  them  in  the  same  body 
with  their  antagonists.  It  laid  hold  of  the  doctrine  of  State 
rights  and  State  sovereignty  as  entitling  a  commonwealth 
which  deemed  itself  aggrieved  to  shake  off  allegiance  to  the 
national  government.  Thus  at  last  it  brought  about  secession 
and  the  great  civil  war.  Even  when  the  war  was  over,  the 
dregs  of  the  poison  continued  to  haunt  and  vex  the  system, 
and  bred  fresh  disorders  in  it.     The  constitutional  duty  of  re- 


CHAP.  XXIX     CRITICISM   OF   THE   FEDERAL   SYSTEM  349 


establishing  the  State  governments  of  the  conquered  States  on 
the  one  hand,  and  on  the  other  hand  the  practical  danger  of 
doing  so  while  their  people  remained  disaffected,  produced 
the  military  governments,  the  "  carpet  bag "  governments,  the 
Ku  Klux  Klan  outrages,  the  gift  of  suffrage  to  a  negro  popu- 
lation unfit  for  such  a  privilege,  yet  apparently  capable  of 
being  protected  in  no  other  way.  All  these  mischiefs,  it  has 
often  been  argued,  are  the  results  of  the  Federal  structure  of 
the  government,  which  carried  in  its  bosom  the  seeds  of  its 
own  destruction,  seeds  sure  to  ripen  so  soon  as  there  arose  a 
question  that  stirred  men  deeply. 

It  may  be  answered  not  merely  that  the  National  govern- 
ment has  survived  this  struggle  and  emerged  from  it  stronger 
than  before,  but  also  that  Federalism  did  not  produce  the 
struggle,  but  only  gave  to  it  the  particular  form  of  a  series  of 
legal  controversies  over  the  Federal  pact  followed  by  a  war  of 
States  against  the  Union.  Where  such  vast  economic  inter- 
ests were  involved,  and  such  hot  passions  roused,  there  must 
anyhow  have  been  a  conflict,  and  it  may  well  be  that  a  conflict 
raging  within  the  vitals  of  a  centralized  government  would 
have  proved  no  less  terrible  and  would  have  left  as  many 
noxious  sequelae  behind. 

In  blaming  either  the  conduct  of  a  person  or  the  plan  and 
scheme  of  a  government  for  evils  which  have  actually  fol- 
lowed, men  are  apt  to  overlook  those  other  evils,  perhaps  as 
great,  which  might  have  flowed  from  different  conduct  or 
some  other  plan.  All  that  can  fairly  be  concluded  from  the 
history  of  the  American  Union  is  that  Federalism  is  obliged 
by  the  law  of  its  nature  to  leave  in  the  hands  of  States  powers 
whose  exercise  may  give  to  political  controversy  a  peculiarly 
dangerous  form,  may  impede  the  assertion  of  national  author- 
ity, may  even,  when  long-continued  exasperation  has  sus- 
pended or  destroyed  the  feeling  of  a  common  patriotism, 
threaten  national  unity  itself.  Against  this  danger  is  to  be 
set  the  fact  that  the  looser  structure  of  a  Federal  govern- 
ment and  the  scope  it  gives  for  diversities  of  legislation  in 
different  parts  of  a  country  may  avert  sources  of  discord,  or 
prevent  local  discord  from  growing  into  a  contest  of  national 
magnitude. 


CHAPTER   XXX 

MERITS    OF    THP:    FEDERAL    SYSTEM 

I  DO  not  propose  to  discuss  in  this  chapter  the  advantages 
of  Federalism  in  general,  for  to  do  this  we  should  have  to 
wander  off  to  other  times  and  countries,  to  talk  of  Achaia  and 
the  Hanseatic  League  and  the  Swiss  Confederation.  I  shall 
comment  on  those  merits  only  which  the  experience  of  the 
American  Union  illustrates. 

There  are  two  distinct  lines  of  argument  by  which  their 
Federal  system  was  recommended  to  the  framers  of  the  Con- 
stitution, and  upon  which  it  is  still  held  forth  for  imitation 
to  other  countries.  These  lines  have  been  so  generally  con- 
founded that  it  is  well  to  present  them  in  a  precise  form. 

The  first  set  of  arguments  point  to  Federalism  proper,  and 
are  the  following :  — 

1.  That  Federalism  furnishes  the  means  of  uniting  com- 
monwealths into  one  nation  under  one  national  government 
without  extinguishing  their  separate  administrations,  legisla- 
tures, and  local  patriotisms.  As  the  Americans  of  1787  would 
probably  have  preferred  complete  State  independence  to  the 
fusion  of  their  States  into  a  unified  government.  Federalism 
was  the  only  resource.  So  when  the  new  Germanic  Empire, 
which  is  really  a  Federation,  was  established  in  1871,  Bavaria 
and  Wurtemberg  could  not  have  been  brought  under  a  national 
government  save  by  a  Federal  scheme.  Similar  suggestions, 
as  every  one  knows,  have  been  made  for  re-settling  the  relations 
of  Ireland  to  Great  Britain,  and  of  the  self-governing  British 
colonies  to  the  United  Kingdom.  There  are  causes  and  condi- 
tions which  dispose  independent  or  semi-independent  commu- 
nities, or  peoples  living  under  loosely  compacted  governments, 
to  form  a  closer  union  in  a  Federal  form.  There  are  other 
causes  and  conditions  which  dispose  the  subjects  of  one  gov- 


CHAP.  XXX        MERITS   OF   THE   FEDERAL   SYSTEM  351 

ernmeut,  or  sections  of  these  subjects,  to  desire  to  make  their 
governmental  union  less  close  by  substituting  a  Federal  for  a 
unitary  system.  In  both  sets  of  cases,  the  centripetal  or  cen- 
trifugal forces  spring  from  the  local  position,  the  history,  the 
sentiments,  the  economic  needs  of  those  among  whom  the  prob- 
lem arises ;  and  that  which  is  good  for  one  people  or  political 
body  is  not  necessarily  good  for  another.  Federalism  is  an 
equally  legitimate  resource  whether  it  is  adopted  for  the  sake 
of  tightening  or  for  the  sake  of  loosening  a  pre-existing  bond. 

2.  That  Federalism  supplies  the  best  means  of  developing  a 
new  and  vast  country.  It  permits  an  expansion  whose  extent, 
and  whose  rate  and  manner  of  progress,  cannot  be  foreseen  to 
proceed  with  more  variety  of  methods,  more  adaptation  of  laws 
and  administration  to  the  circumstances  of  each  part  of  the  ter- 
ritory, and  altogether  in  a  more  truly  natural  and  spontaneous 
way,  than  can  be  expected  under  a  centralized  government, 
which  is  disposed  to  apply  its  settled  system  through  all  its  do- 
minions. Thus  the  special  needs  of  a  new  region  are  met  by  the 
inhabitants  in  the  way  they  find  best :  its  special  evils  are  cured 
by  special  remedies,  perhaps  more  drastic  than  an  old  country 
demands,  perhaps  more  lax  than  an  old  country  would  tolerate  ; 
while  at  the  same  time  the  spirit  of  self-reliance  among  those 
who  build  up  these  new  communities  is  stimulated  and  re- 
spected. 

3.  That  Federalism  prevents  the  rise  of  a  despotic  central 
government,  absorbing  other  powers,  and  menacing  the  private 
liberties  of  the  citizen.  This  may  now  seem  to  have  been  an 
idle  fear,  so  far  as  America  was  concerned.  It  was,  however, 
a  very  real  fear  among  the  great-grandfathers  of  the  present 
Americans,  and  nearly  led  to  the  rejection  even  of  so  undespotic 
an  instrument  as  the  Federal  Constitution  of  1789.  Congress 
(or  the  President,  as  the  case  may  be)  is  still  sometimes  de- 
scribed as  a  tyrant  by  the  party  which  does  not  control  it, 
simply  because  it  is  a  central  government:  and  the  States  are 
represented  as  bulwarks  against  its  encroachments. 

The  second  set  of  arguments  relate  to  and  recommend  not 
so  much  Federalism  as  local  self-government.  I  state  them 
briefly  because  they  are  familiar. 

4.  Self-government  stimulates  the  interest  of  people  in  the 
affairs  of  their  neighbourhood,  sustaii>s  local  political  life,  edu- 


352  THE   NATIONAL   GOVERNMENT 


cates  the  citizen  in  his  daily  round  of  civic  duty,  teaches  him 
that  perpetual  vigilance  and  the  sacrifice  of  his  own  time  and 
labour  are  the  price  that  must  be  paid  for  individual  liberty 
and  collective  prosperity. 

5.  Self-government  secures  the  good  administration  of  local 
affairs  by  giving  the  inhabitants  of  each  locality  due  means  of 
overseeing  the  conduct  of  their  business. 

That  these  two  sets  of  grounds  are  distinct  appears  from  the 
fact  that  the  sort  of  local  interest  which  local  self-government 
evokes  is  quite  a  different  thing  from  the  interest  men  feel  in 
tlie  affairs  of  a  large  body  like  an  American  State.  So,  too,  the 
control  over  its  own  affairs  of  a  township,  or  even  a  small 
county,  where  everybody  can  know  what  is  going  on,  is  quite 
different  from  the  control  exercisable  over  the  affairs  of  a  com- 
monwealth with  a  million  of  people.  Local  self-government 
may  exist  in  a  unified  country  like  England,  and  may  be  want-_ 
ing  in  a  Federal  country  like  Germany.  And  in  America  itself, 
while  some  States,  like  those  of  New  England,  possessed  an 
admirably  complete  system  of  local  government,  others,  such 
as  Virginia,  the  old  champion  of  State  sovereignty,  were  im- 
perfectly provided  with  it.  Nevertheless,  through  both  sets  of 
arguments  there  runs  the  general  principle,  applicable  in  every 
part  and  branch  of  government,  that,  where  other  things  are 
equal,  the  more  power  is  given  to  the  units  which  compose  the 
nation,  be  they  large  or  small,  and  the  less  to  the  nation  as  a 
whole  and  to  its  central  authority,  so  much  the  fuller  will  be 
the  liberties  and  so  much  greater  the  energy  of  the  individuals 
who  compose  the  people.  This  principle,  though  it  had  not 
been  then  formulated  in  the  way  men  formulate  it  now,  was 
heartily  embraced  by  the  Americans.  Perhaps  it  was  because 
they  agreed  in  taking  it  as  an  axiom  that  the}^  seldom  referred 
to  it  in  the  subsequent  controversies  regarding  State  rights. 
These  controversies  proceeded  on  the  basis  of  the  Constitution  as 
a  law  rather  than  on  considerations  of  general  political  theory. 
A  European  reader  of  the  history  of  the  first  seventy  years 
of  the  United  States  is  surprised  how  little  is  said,  through  the 
interminable  discussions  regarding  the  relation  of  the  Federal 
government  to  the  States,  on  the  respective  advantages  of  cen- 
tralization or  localization  of  powers  as  a  matter  of  historical 
experience  and  general  expediency. 


CHAP.  XXX        MERITS   OF   THE   FEDERAL   SYSTEM  353 

Three  further  benefits  to  be  expected  from  a  Federal  system 
may  be  meiitioned,  benefits  which  seem  to  have  been  unnoticed 
or  little  regarded  by  those  who  established  it  in  America. 

6.  Federalism  enables  a  people  to  try  experiments  in  legis- 
lation and  administration  which  could  not  be  safely  tried  in 
a  large  centralized  country.  A  comparatively  small  common- 
wealth like  an  American  State  easily  makes  and  unmakes  its 
laws ;  mistakes  are  not  serious,  for  they  are  soon  corrected ; 
other  States  profit  by  the  experience  of  a  law  or  a  method 
which  has  worked  well  or  ill  in  the  State  that  has  tried  it. 

7.  Federalism,  if  it  diminishes  the  collective  force  of  a  nation, 
diminishes  also  the  risks  to  which  its  size  and  the  diversities  of 
its  parts  expose  it.  A  nation  so  divided  is  like  a  ship  built  with 
water-tight  compartments.  When  a  leak  is  sprung  in  one  com- 
partment, the  cargo  stowed  there  may  be  damaged,  but  the  other 
compartments  remain  dry  and  keep  the  ship  afloat.  So  if  social 
discord  or  an  economic  crisis  has  produced  disorders  or  foolish 
legislation  in  one  member  of  the  Federal  body,  the  mischief  may 
stop  at  the  State  frontier  instead  of  spreading  through  and  taint- 
ing the  nation  at  large. 

8.  Federalism,  by  creating  many  local  legislatures  with  wide 
powers,  relieves  the  national  legislature  of  a  part  of  that  large 
mass  of  functions  which  might  otherwise  prove  too  heavy  for  it. 
Thus  business  is  more  promptly  despatched,  and  the  great  cen- 
tral council  of  the  nation  has  time  to  deliberate  on  those  ques- 
tions which  most  nearly  touch  the  whole  country. 

All  of  these  arguments  recommending  Federalism  have  proved 
valid  in  American  experience. 

To  create  a  nation  while  preserving  the  States  was  the  main 
reason  for  the  grant  of  powers  which  the  National  government 
received;  an  all-sufficient  reason,  and  one  which  holds  good 
to-day.  The  several  States  have  changed  greatly  since  1789, 
but  they  are  still  commonwealths  whose  wide  authority  and 
jurisdiction  practical  men  are  agreed  in  desiring  to  maintaii;i. 

Not  much  was  said  in  the  Convention  of  1787  regarding  the 
best  methods  of  extending  government  over  the  unsettled  terri- 
tories lying  beyond  the  Alleghany  mountains.^  It  was,  however, 
assumed  that  they  would  develop  as  the  older  colonies  had  de- 

1  In  1787,  however,  the  great  Ordinance  regulating  the  North-West  Terri- 
tory was  enacted  by  the  Congress  of  the  Confederation. 

VOL.  I  2  A 


354  THE   NATIOXAL   GOVERXMEXT  part  i 

veloped,  and  in  point  of  fact  each  district,  when  it  became 
sufficiently  populous,  was  formed  into  a  seK-governing  State, 
the  less  populous  divisions  still  remaining  in  the  status  of 
semi-self-governing  Territories.  Although  many  blunders  have 
been  committed  in  the  process  of  development,  especially  in 
the  reckless  contraction  of  debt  and  the  wasteful  disposal  of 
the  public  lands,  greater  evils  might  have  resulted  had  the 
creation  of  local  institutions  and  the  control  of  new  communi- 
ties been  left  to  the  Central  government.^  Congress  would  have 
been  not  less  improvident  than  the  State  governments,  for  it 
■would  have  been  even  less  closely  "watched.  The  opportunities 
for  jobbery  would  have  been  irresistible,  the  growth  of  order 
and  civilization  probably  slower.  It  deserves  to  be  noticed  that, 
in  granting  self-government  to  all  those  of  her  colonies  whose 
population  is  of  English  race,  England  has  practically  adopted 
the  same  plan  as  the  United  States  have  done  with  their  west- 
ern territory.  The  results  have  been  generally  satisfactory, 
although  England,  like  America,  has  found  that  her  colonists 
have  been  disposed  to  treat  the  aboriginal  inhabitants,  whose 
lands  they  covet  and  whose  persons  they  hate,  with  a  harsh- 
ness and  injustice  which  the  mother  country  would  gladly 
check. 

The  arguments  which  set  forth  the  advantages  of  local  self- 
government  were  far  more  applicable  to  the  States  of  1787  than 
to  those  of  1887.  Virginia,  then  the  largest  State,  had  only  half 
a  million  free  inhabitants,  about  the  present  population  of  St. 
Louis.  Massachusetts  had  450,000,  Pennsylvania  400,000,  Xew 
York  300,000 ;  while  Georgia,  Khode  Island,  and  Delaware 
had  (even  counting  slaves)  less  than  200,000  between  them.- 
These  were  commiuiities  to  which  the  expression  "  local  self- 

1  The  United  States  is  proprietor  of  the  pnhlic  domain  in  the  Territories, 
and  when  a  new  State  is  organized  the  ownership  is  not  changed.  The  United 
States,  however,  makes  grants  of  wild  lands  to  the  new  State  as  follows :  — 
(I)  Of  every  section  numbered  16  (being  one  thirty-sixth  of  all;  for  the  support 
of  common  schools.  (2)  Of  lands  to  endow  a  university.  (.3;  Of  the  lands  noted 
in  the  surveys  as  swamp  lands,  and  which  often  are  valuable,  (i)  It  has  usu- 
ally made  further  grants  to  aid  in  the  construction  of  railroads,  and  for  an 
agricultural  college.  The  grants  commonly  leave  the  Unite<:l  States  a  much 
larger  landowner  within  the  State  than  is  the  State  itself,  and  when  all  the 
dealings  of  the  Xational  government  with  its  lands  are  considered,  it  is  more 
justly  chargeable  with  squandering  the  public  domain  than  the  States  are. 

2  I  give  round  numbers,  reduced  a  little  from  the  census  of  1790. 


CHAP.  XXX        MERITS   OF   THE   FEDERAL   SYSTEM  355 

government "  might  be  applied,  for,  although  the  population 
"vras  scattered,  the  numbers  were  small  enough  for  the  citizens 
to  have  a  personal  knowledge  of  their  leading  men,  and  a  per- 
sonal interest  (especially  as  a  large  proportion  were  land- 
owners) in  the  economy  and  prudence  with  which  common 
affairs  were  managed.  Xow,  however,  when  of  the  forty-four 
States  twenty-seven  have  more  than  a  million  inhabitants,  and 
four  have  more  than  three  millions,  the  newer  States,  being, 
moreover,  larger  in  area  than  most  of  the  older  ones,  the  stake 
of  each  citizen  is  relatively  smaller,  and  generally  too  small  to 
sustain  his  activity  in  politics,  and  the  party  chiefs  of  the 
State  are  known  to  him  only  by  the  newspapers  or  by  their 
occasional  visits  on  a  stumping  tour.^ 

All  that  can  be  claimed  for  the  Federal  system  under  this 
head  of  the  argument  is  that  it  jirovides  the  machinery  for  a 
better  control  of  the  taxes  raised  and  expended  in  a  given 
region  of  the  country,  and  a  better  oversight  of  the  public 
works  undertaken  there  than  would  be  possible  were  every- 
thing left  to  the  Central  government.-  As  regards  the  educa- 
tive effect  of  numerous  and  frequent  elections,  it  will  be  shown 
in  a  later  chapter  that  elections  in  America  are  too  many  and 
come  too  frequently.  Overtaxing  the  attention  of  the  citizen 
and  frittering  away  his  interest,  they  leave  him  at  the  mercy 
of  knots  of  selfish  adventurers. 

The  utility  of  the  State  system  in  localizing  disorders  or 
discontents,  and  the  opportunities  it  affords  for  trying  easily 
and  safely  experiments  which  ought  to  be  tried  in  legislation 
and  administration,  constitute  benefits  to  be  set  off  against 
the  risk,  referred  to  in  the  last  preceding  chapters,  that  evils 

1  To  have  secured  the  real  benefits  of  local  self-government  the  States  ought 
to  have  been  kept  ai  a  tigiire  not  much  above  that  of  their  original  population, 
their  territory  being  cut  up  into  new  States  as  the  population  increased.  Had 
this  been  done  —  no  doubt  at  the  cost  of  some  obvious  disadvantages,  such  as 
the  diminution  of  State  historical  feeling,  the  undue  enlargement  of  the  Senate, 
and  the  predominance  of  a  single  large  city  in  a  State, — there  would  now  be 
more  than  two  himdred  States.  Of  course  in  one  sense  the  States  axe  no  larger 
than  they  were  in  the  early  days,  because  communication  from  one  part  to 
another  is  in  all  of  them  far  easier,  quicker,  and  cheaper  than  it  then  was. 

-  It  must  be  remembered  that  in  most  parts  of  the  Uuiou  the  local  self- 
government  of  cities,  coitnties.  townships,  and  school  districts  exists  in  a  more 
complete  form  than  in  anv  of  the  great  countries  of  Europe.  —  See  Chapters 
XLYlU.-lAl.post. 


356  THE   NATIONAL   GOVERNMENT  part  i 

may  continue  in  a  district,  may  work  injustice  to  a  minority 
and  invite  imitation  by  other  States,  which,  the  wholesome 
stringency  of  the  Central  government  might  have  suppressed. 

A  more  unqualified  approval  may  be  given  to  the  division 
of  legislative  powers.  The  existence  of  the  State  legislatures 
relievos  Congress  of  a  burden  too  heavy  for  its  shoulders ;  for 
although  it  has  far  less  foreign  policy  to  discuss  than  the 
Parliaments  of  England,  France,  or  Italy,  and  although  the 
separation  of  the  executive  from  the  legislative  department 
gives  it  less  responsibility  for  the  ordinary  conduct  of  the 
administration  than  devolves  on  those  Chambers,  it  could  not 
possibly,  were  its  competence  as  large  as  theirs,  deal  with  the 
multiform  and  increasing  demands  of  the  different  parts  of 
the  Union.  There  is  great  diversity  in  the  material  condi- 
tions of  different  parts  of  the  country,  and  at  present  the 
people,  particularly  in  the  West,  are  eager  to  have  their  diffi- 
culties handled,  their  economic  and  social  needs  satisfied,  by 
the  State  and  the  law.  How  little  Congress  could  satisfy 
them  appears  by  the  very  imperfect  success  with  which  it 
cultivates  the  field  of  legislation  to  which  it  is  now  limited. 

These  merits  of  the  Federal  system  of  government  which  I 
have  enumerated  are  the  counterpart  and  consequences  of  that 
limitation  of  the  central  authority  whose  dangers  were  indi- 
cated in  last  chapter.  They  are,  if  one  may  reverse  the  French 
phrase,  the  qualities  of  Federalism's  defects.  The  problem 
which  all  federalized  nations  have  to  solve  is  how  to  secure 
an  efficient  central  government  and  preserve  national  unity, 
while  allowing  free  scope  for  the  diversities,  and  free  play  to 
the  authorities,  of  the  members  of  the  federation.  It  is,  to 
adopt  that  favourite  astronomical  metaphor  which  no  American 
panegyrist  of  the  Constitution  omits,  to  keep  the  centrifugal 
and  centripetal  forces  in  equilibrium,  so  that  neither  the 
planet  States  shall  fly  off  into  space,  nor  the  sun  of  the  Cen- 
tral government  draw  them  into  its  consuming  fires.  The 
characteristic  merit  of  the  American  Constitution  lies  in  the 
method  by  which  it  has  solved  this  problem.  It  has  given 
the  National  government  a  direct  authority  over  all  citi- 
zens, irrespective  of  the  State  governments,  and  has  there- 
fore been  able  safely  to  leave  wide  powers  in  the  hands  of 
those  governments.     And  by  placing  the  Constitution  above 


CHAP.  XXX        MERITS  OF  THE   FEDERAL  SYSTEM  357 

both  the  National  and  the  State  governments,  it  has  referred  the 
arbitrament  of  disputes  between  them  to  an  independent  body, 
charged  with  the  interpretation  of  the  Constitution,  a  body 
which  is  to  be  deemed  not  so  much  a  third  authority  in  the 
government  as  the  living  voice  of  the  Constitution,  the  un- 
folder  of  the  mind  of  the  people  whose  will  stands  expressed 
in  that  supreme  instrument. 

The  application  of  these  two  principles,  unknown  to,  or  at 
any  rate  little  used  by,  any  previous  federation,'  has  contrib- 
uted more  than  anything  else  to  the  stability  of  the  American 
system,  and  to  the  reverence  which  its  citizens  feel  for  it,  a 
reverence  which  is  the  best  security  for  its  permanence.  Yet 
even  these  devices  would  not  have  succeeded  but  for  the  pres- 
ence of  a  mass  of  moral  and  material  influences  stronger  than 
any  political  devices,  which  have  maintained  the  equilibrium 
of  centrifugal  and  centripetal  forces.  On  the  one  hand  there 
has  been  the  love  of  local  independence  and  self-government ; 
on  the  other,  the  sense  of  community  in  blood,  in  language,  in 
habits  and  ideas,  a  common  pride  in  the  national  history  and 
the  national  flag. 

Quid  leges  sine  moribus?  The  student  of  institutions,  as  well 
as  the  lawyer,  is  apt  to  overrate  the  effect  of  mechanical  con- 
trivances in  politics.  I  admit  that  in  America  they  have  had 
one  excellent  result;  they  have  formed  a  legal  habit  in  the 
mind  of  the  nation.  But  the  true  value  of  a  political  contriv- 
ance resides  not  in  its  ingenuity  but  in  its  adaptation  to  the 
temper  and  circumstances  of  the  people  for  whom  it  is  designed, 
in  its  power  of  using,  fostering,  and  giving  a  legal  form  to  those 
forces  of  sentiment  and  interest  which  it  finds  in  being.  So  it 
has  been  with  the  American  system.  Just  as  the  passions 
which  the  question  of  slavery  evoked  strained  the  Federal 
fabric,  disclosing  unforeseen  weaknesses,  so  the  love  of  the 
Union,  the  sense  of  the  material  and  social  benefits  involved 
in  its  preservation,  appeared  in  unexpected  strength,  and 
manned  with  zealous  defenders  the  ramparts  of  the  sovereign 
Constitution.  It  is  this  need  of  determining  the  suitability  of 
the  machinery  for  the  workmen  and  its  probable  influence 

1  The  central  government  in  the  Achaian  League  had  apparently  a  direct 
authority  over  the  citizens  of  the  several  cities,  but  it  was  so  ill  defined  and  so 
little  employed  that  we  can  hardly  cite  that  instance  as  a  precedent. 


358  THE   NATIONAL   GOVEKNMENT  part  i 

upon  them,  as  well  as  the  capacity  of  the  workman  for  using 
and  their  willingness  to  use  the  machinery,  which  makes  it  so 
diffi.cult  to  predict  the  operation  of  a  political  contrivance,  or, 
when  it  has  succeeded  in  one  country,  to  advise  its  imitation 
in  another.  The  growing  strength  of  the  national  government 
in  the  United  States  is  largely  due  to  sentimental  forces  that 
were  weak  a  century  ago,  and  to  a  development  of  internal 
communications  which  was  then  undreamt  of.  And  the  de- 
vices which  we  admire  in  the  Constitution  might  prove  unwork- 
able among  a  people  less  patriotic  and  self-reliant,  less  law-loving 
and  law-abiding,  than  are  the  English  of  America. 


CHAPTER  XXXI 

GROWTH    AND    DEVELOPMENT    OF    THE    CONSTITUTION 

Theke  is  another  point  of  view  from  which  we  have  still  to 
consider  the  Constitution.  It  is  not  only  a  fundamental  law, 
but  an  unchangeable  law,  unchangeable,  that  is  to  say,  by  the 
national  legislature,  and  changeable  even  by  the  people  only 
through  a  slow  and  difficult  process.  How  can  a  country  whose 
very  name  suggests  to  us  movement  and  progress  be  governed 
by  a  system  and  under  an  instrument  which  remains  the  same 
from  year  to  year  and  from  century  to  century  ? 

By  the  "  Constitution  "  of  a  state  or  a  nation  we  mean  those 
of  its  rules  or  laws  which  determine  the  form  of  its  govern- 
ment, and  the  respective  rights  and  duties  of  the  government 
towards  the  citizens  and  of  the  citizens  towards  the  govern- 
ment. These  rules,  or  the  more  important  among  them,  may 
be  contained  in  one  document,  such  as  the  Swiss  or  the  Bel- 
gian Constitution,  or  may  be  scattered  through  a  multitude  of 
statutes  and  reports  of  judicial  decisions,  as  is  the  case  with 
regard  to  what  men  call  the  English  Constitution.  This  is  a 
distinction  of  practical  consequence.  But  a  still  more  impor- 
tant difference  exists  in  the  fact  that  in  some  countries  the 
rules  or  laws  which  make  up  the  Constitution  can  be  made  and 
changed  by  the  ordinary  legislature  just  like  any  other  laws, 
while  in  other  countries  such  rules  are  placed  above  and  out 
of  the  reach  of  the  legislature,  having  been  enacted  and  being 
changeable  only  by  some  superior  authority.  In  countries  of 
the  former  class  the  so-called  Constitution,  is  nothing  more 
than  the  aggregate  of  those  laws — including  of  course  cus- 
toms and  judicial  decisions  —  which  have  a  political  character ; 
and  this  description  is  too  vague  to  be  scientifically  useful,  for 
no  three  jurists  would  agree  as  to  which  laws  ought  to  be 
deemed  political.     In  such  countries  there  is  nothing  either  in 

359 


360  THE  NATIONAL  GOVERNMENT 


the  form  of  what  are  commonly  called  constitutional  laws,  or 
in  the  source  from  which  they  emanate,  or  in  the  degree  of 
their  authority,  to  mark  them  off  from  other  laws.  The  Con- 
stitution of  England  is  constantly  changing,  for  as  the  legisla- 
ture, in  the  ordinary  exercise  of  its  powers,  frequently  passes 
enactments  which  affect  the  methods  of  government  and  the 
political  rights  of  the  citizens,  there  is  no  certainty  that  what 
is  called  the  Constitution  will  stand  the  same  at  the  end  of  a 
given  session  of  Parliament  as  it  stood  at  the  beginning.^  A 
constitution  of  this  kind,  capable  at  any  moment  of  being  bent 
or  turned,  expanded  or  contracted,  may  properly  be  called  a 
Flexible  Constitution. 

In  countries  of  the  other  class  the  laws  and  rules  which 
prescribe  the  nature,  powers,  and  functions  of  the  government 
are  contained  in  a  document  or  documents  emanating  from  an 
authority  superior  to  that  of  the  legislature.  This  authority 
may  be  a  monarch  who  has  octroys  a  charter  alterable  by  him- 
self only.  Or  it  may  be  the  whole  people  voting  at  the  polls  ; 
or  it  may  be  a  special  assembly,  or  combination  of  assemblies, 
appointed  ad  hoc.  In  any  case  we  find  in  such  countries  a  law 
or  group  of  laws  distinguished  from  other  laws  not  merely  by 
the  character  of  their  contents,  but  by  the  source  whence  they 

1  The  first  statesman  who  remarked  this  seems  to  have  been  James  Wilson, 
who  said  in  1788,  "  The  idea  of  a  constitution  limiting  and  superintending  the 
operations  of  legislative  authority,  seems  not  to  have  been  accurately  under- 
stood in  Britain.  There  are  at  least  no  traces  of  practice  conformable  to  such 
a  principle.  The  British  Constitution  is  just  what  the  British  Parliament 
pleases.  When  the  Parliament  transferred  legislative  authority  to  Henry  VIII., 
the  act  transferring  could  not,  in  the  strict  acceptation  of  the  term,  be  called 
unconstitutional.  To  control  the  powers  and  conduct  of  the  legislature  by  an 
overruling  constitution  was  an  improvement  in  the  science  and  practice  of 
government  reserved  to  the  American  States."  —  Elliot's  Debates,  ii.  432. 
Paley  had  made  the  observation  relating  to  England  in  his  Moral  Philosophy, 
published  shortly  before  1787.  Read  and  consider  Oliver  Cromwell's  Instru- 
ment, called  "  The  Government  of  the  Commonwealth  of  England,  Scotland, 
and  Ireland,"  printed  in  the  Parliamentary  History,  vol.  iii.  p.  1417.  It  was 
provided  by  this  instrument  that  statutes  passed  in  Parliament  should  take 
effect,  even  if  not  assented  to  by  the  Lord  Protector,  but  only  if  they  were 
agreeable  to  the  articles  of  the  instrument,  which  would  therefore  appear  to 
have  been  a  genuine  Rigid  constitution  within  the  terras  of  the  definition  given 
in  the  text.  Some  of  the  provisions  of  the  articles  are  so  minute  that  they  can 
hardly  have  been  intended  to  be  placed  above  change  by  Parliament;  but 
Cromwell  seems  from  the  remarkable  speech  which  he  delivered  on  16th  De- 
cember 1653,  in  promulgating  the  Instrument,  to  have  conceived  that  what  he 
called  the  Fundamentals  should  be  unchangeable. 


CHAP.  XXXI      DEVELOPMENT   OF   THE   CONSTITUTION  361 

spring  and  by  the  force  they  exert,  a  force  which  overrides  and 
breaks  all  conflicting  enactments  passed  by  the  ordinary  legis- 
lature. Where  the  Constitution  consists  of  such  a  law  or  laws, 
I  propose  to  call  it  a  Rigid  Constitution,  i.e.  one  which  cannot 
be  bent  or  twisted  by  the  action  of  the  legislature,  but  stands 
stiff  and  solid,  opposing  a  stubborn  resistance  to  the  attacks 
of  any  majority  who  may  desire  to  transgress  or  evade  its 
provisions.  As  the  English  Constitution  is  the  best  modern 
instance  of  the  flexible  type,  so  is  the  American  of  the  rigid 
type. 

It  will  at  once  be  asked.  How  can  any  constitution  be  truly 
rigid  ?  Growth  and  decay  are  the  necessary  conditions  of  the 
life  of  institutions  as  well  as  of  individual  organisms.  One 
constitution  may  be  altered  less  frequently  or  easily  than 
another,  but  an  absolutely  unchangeable  constitution  is  an 
impossibility.^ 

The  question  is  pertinent;  the  suggestion  is  true.  No  con- 
stitution can  be  made  to  stand  unsusceptible  of  change,  because 
if  it  were,  it  would  cease  to  be  suitable  to  the  conditions  amid 
which  it  has  to  work,  that  is,  to  the  actual  forces  which  sway 
politics.  And  being  unsuitable,  it  would  be  weak,  not  rooted  in 
the  nature  of  the  State  and  in  the  respect  of  the  citizens  for 
whom  it  exists ;  and  being  weak,  it  would  presently  be  over- 
thrown. If  therefore  we  find  a  rigid  constitution  tenacious  of 
life,  if  we  find  it  enjoying,  as  Virgil  says  of  the  gods,  a  fresh 
and  green  old  age,  we  may  be  sure  that  it  has  not  stood  wholly 
changeless,   but   has   been    so    modified   as  to   have   adapted 

1  The  constitutions  of  the  ancient  world  were  all  or  nearly  all  flexible,  be- 
cause the  ancient  republics  were  governed  by  primary  assemblies,  all  whose 
laws  were  of  equal  validity.  By  far  the  most  interesting  and  instructive 
example  is  the  Constitution  of  Rome.  It  presents  some  striking  resemblances 
to  the  Constitution  of  England  —  both  left  many  points  undetermined,  both 
relied  largely  upon  semi-legal  usages  and  understandings  —  and  any  constitu- 
tional lawyer  who  should  coiiipare  the  practical  workings  of  the  two  in  a 
philosophical  way  would  render  a  service  to  political  science. 

However,  one  finds  here  and  there  in  Greek  constitutions  provisions  intended 
to  secure  certain  laws  from  change.  At  Athens,  for  instance,  there  was  a  dis- 
tinction between  Laws  (.'6^01)  which  required  the  approval  of  a  committee 
called  the  Nomothetae,  and  Decrees  {^l,rl4,i<T,J.a.Ta) ,  passed  by  the  Assembly  alone, 
and  any  person  proposing  a  decree  inconsistent  with  a  law  was  liable  to  an 
action  (ypa./.ij  Trapavd^o).')  for  having,  so  to  speak,  led  the  people  into  illegality. 
His  conviction  in  this  action  carried  with  it  a  declaration  of  the  invalidity  of 
the  decree. 


3G2  THE   NATIONAL   GOVERNMENT  part  i 

itself  to  the  always  altering  circumstances  that  have  grown  up 
round  it.  Most  of  all  must  this  be  true  of  a  new  country 
where  men  and  circumstances  change  faster  than  in  Europe, 
and  where,  owing  to  the  equality  of  conditions,  the  leaven  of 
new  ideas  works  more  thoroughly  upon  the  whole  lump. 

We  must  therefore  be  prepared  to  expect  that  the  American 
Constitution  will,  when  its  present  condition  is  compared  with 
its  fire-new  condition  in  1789,  prove  to  have  felt  the  hand  of 
time  and  change. 

Historical  inquiry  verifies  this  expectation.  The  Constitu- 
tion of  the  United  States,  rigid  though  it  be,  has  changed,  has 
developed.  It  has  developed  in  three  ways  to  which  I  devote 
the  three  following  chapters. 

It  has  been  changed  by  Amendment.  Certain  provisions 
have  been  struck  out  of  the  original  document  of  1787-88 ; 
certain  other,  and  more  numerous,  provisions  have  been  added. 
This  method  needs  little  explanation,  because  it  is  open  and 
direct.'  It  resembles  the  method  in  which  laws  are  changed 
in  England,  the  difference  being  that  whereas  in  England 
statutes  are  changed  by  the  legislature  alone,  here  in  the 
United  States  the  fundamental  law  is  changed  in  a  more 
complex  fashion  by  the  joint  action  of  Congress  and  the 
States. 

It  has  been  developed  by  Interpretation,  that  is,  by  the 
unfolding  of  the  meaning  implicitly  contained  in  its  necessarily 
brief  terms ;  or  by  the  extension  of  its  provisions  to  cases 
which  they  do  not  directly  contemplate,  but  which  their  gen- 
eral spirit  must  be  deemed  to  cover. 

It  has  been  developed  by  Usage,  that  is,  by  the  establish- 
ment of  rules  not  inconsistent  with  its  express  provisions,  but 
giving  them  a  character,  effect,  and  direction  which  they 
would  not  have  if  they  stood  alone,  and  by  which  their  work- 
ing is  materially  modified.  These  rules  are  sometimes  em- 
bodied in  statutes  passed  by  Congress  and  repealable  by  Con- 
gress. Sometimes  they  remain  in  the  stage  of  a  mere  conven- 
tion or  understanding  which  has  no  legal  authority,  but  which 
everybody  knows  and  accepts.  Whatever  their  form,  they 
must  not  conflict  with  the  letter  of  the  Constitution,  for  if 
they  do  conflict  with  it,  they  will  be  deemed  invalid  whenever 
a  question  involving  them  comes  before  a  court  of  law. 


CHAP.  XXXI    DEVELOPMENT  OF  THE  CONSTITUTION  363 


It  may  be  observed  that  of  these  three  modes  of  change,  the 
first  is  the  most  obvious,  direct,  and  effective,  but  also  the 
most  difficult  to  apply,  because  it  needs  an  agreement  of  many 
independent  bodies  which  is  rarely  attainable.  The  second 
mode  is  less  potent  in  its  working,  because  an  interpretation 
put  on  a  provision  may  be  recalled  or  modified  by  the  same 
authority,  viz.  the  courts  of  law  (and  especially  the  Supreme 
Federal  Court),  which  has  delivered  it.  But  while  a  particular 
interpretation  stands,  it  is  as  strong  as  the  Constitution  itself, 
being  indeed  incorporated  therewith,  and  therefore  stronger  than 
anything  which  does  not  issue  from  the  same  ultimate  source 
of  power,  the  will  of  the  people.  The  weakest,  though  the 
easiest  and  most  frequent  method,  is  the  third.  For  legisla- 
tion and  custom  are  altogether  subordinate  to  the  Constitution, 
and  can  take  effect  only  where  the  letter  of  the  Constitution  is 
silent,  and  where  no  authorized  interpretation  has  extended  the 
letter  to  an  unspecified  case.  But  they  work  readily,  quickly, 
freely;  and  the  developments  to  be  ascribed  to  them  are  there- 
fore as  much  larger  in  quantity  than  those  due  to  the  two 
other  methods  as  they  are  inferior  in  weight  and  permanence. 

We  shall  pe.rceive  after  examining  these  three  sources  of 
change  not  only  that  the  Constitution  as  it  now  stands  owes 
much  to  them,  but  that  they  are  likely  to  modify  it  still  further 
as  time  goes  on.  We  shall  find  that,  rigid  as  it  is,  it  suffers 
constant  qualification  and  deflection,  and  that  while  its  words 
continue  in  the  main  the  same,  it  has  come  to  mean  something 
different  to  the  men  of  1890  from  what  it  meant  to  those  of 
1810  when  it  had  been  at  work  for  more  than  twenty  years,  or 
even  to  those  of  1860,  when  the  fires  of  protracted  controversy 
might  be  thought  to  have  thrown  a  glare  of  light  into  every 
corner  of  its  darkest  chamber. 


CHAPTER  XXXII 

THE    AMENDMENT    OF    THE    CONSTITUTION" 

The  men  who  sat  in  the  Convention  of  1787  were  not  san- 
guine enough,  like  some  of  the  legislating  sages  of  antiquity, 
or  like  such  imperial  codifiers  as  the  Emperor  Justinian,  to 
suppose  that  their  work  could  stand  unaltered  for  all  time  to 
come.  They  provided  (Art.  v.)  that  "Congress,  whenever 
two-thirds  of  both  houses  shall  deem  it  necessary,  shall  pro- 
pose amendments  to  this  Constitution,  or  on  the  application 
of  the  legislatures  of  two-thirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either  case, 
shall  be  valid  to  all  intents  and  purposes  as  part  of  this  Consti- 
tution when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  States,  or  by  conventions  in  three-fourths  thereof,  as 
the  one  or  the  other  mode  may  be  prescribed  by  Congress." 

There  are  therefore  two  methods  of  framing  and  proposing 
amendments. 

(A)  Congress  may  itself,  by  a  two-thirds  vote  in  each  house, 
prepare  and  propose  amendments. 

(B)  The  legislatures  of  tw^o-thirds  of  the  States  may  require 
Congress  to  summon  a  Constitutional  Convention.  Congress 
shall  thereupon  do  so,  having  no  option  to  refuse ;  and  the  Con- 
vention when  called  shall  draft  and  submit  amendments.  No 
provision  is  made  as  to  the  election  and  composition  of  the 
Convention,  matters  w^hich  would  therefore  appear  to  be  left  to 
the  discretion  of  Congress. 

There  are  also  two  methods  of  enacting  amendments  framed 
and  proposed  in  either  of  the  foregoing  ways.  It  is  left  to 
Congress  to  prescribe  one  or  other  method  as  Congress  may 
think  fit. 

(X)  The  legislatures  of  three-fourths  of  the  States  may 
ratify  any  amendments  submitted  to  them. 


CHAP.  XXXII     AMENDMENT   OF   THE    CONSTITUTION  365 

(Y)  Conventions  may  be  called  in  the  several  States,  and 
three-fourths  of  these  conventions  may  ratify.^ 

On  all  the  occasions  on  which  the  amending  power  has  been 
exercised,  method  A  has  been  employed  for  proposing  and 
method  X  for  ratifying  —  i.e.  no  drafting  conventions  of  the 
whole  Union  or  ratifying  conventions  in  the  several  States  have 
ever  been  summoned.  The  preference  of  the  action  of  Con- 
gress and  the  State  legislatures  may  be  ascribed  to  the  fact  that 
it  has  never  been  desired  to  remodel  the  whole  Constitution, 
but  only  to  make  changes  or  additions  on  special  points. 
Moreover,  the  procedure  by  National  and  State  conventions 
might  be  slower,  and  would  involve  controversy  over  the 
method  of  electing  those  bodies.  The  consent  of  the  President 
is  not  required  to  a  constitutional  amendment.^  A  two-thirds 
majority  in  Congress  can  override  his  veto  of  a  Bill,  and  at 
least  that  majority  is  needed  to  bring  a  constitutional  amend- 
ment before  the  people. 

There  is  only  one  provision  of  the  Constitution  which  cannot 
be  changed  by  this  process.  It  is  that  which  secures  to  each 
and  every  State  equal  representation  in  one  branch  of  the 
legislature.  "No  State  without  its  consent  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate"  (Art.  v.).  It  will  be  ob- 
served that  this  provision  does  not  require  unanimity  on  the 
part  of  the  States  to  a  change  diminishing  or  extinguishing 
State  representation  in  the  Senate,  but  merely  gives  any  par- 
ticular State  proposed  to  be  affected  an  absolute  veto  on  the 
proposal.  If  a  State  were  to  consent  to  surrender  its  rights, 
and  three-fourths  of  the  whole  number  to  concur,  the  resistance 
of  the  remaining  fourth  would  not  prevent  the  amendment 
from  taking  effect. 

Following  President  Lincoln,  Americans  speak  of  the  Union 
as  indestructible  ;  and  the  expression,  "An  indestructible  Union 
of  indestructible  States, "  has  been  used  by  the  Supreme  court 
in  a  famous  case.^  But  looking  at  the  constitution  simply  as 
a  legal  document,  one  finds  nothing  in  it  to  prevent  the  adop- 

1  No  time  is  fixed  within  which  the  ratification  must  take  place,  a  somewhat 
inconvenient  omission. 

2  Tlie  point  was  decided  by  the  Supreme  court  in  1794  in  the  case  of  Hollings- 
ivorth  V.  Stxitp  of  Vermont  (3  Dall.  378) ;  and  the  Senate  came  to  the  same  con- 
clusion in  18()5.    See  Jameson  on  Constitutional  Conventions,  §  500. 

3  Texas  v.  White,  see  ante,  p.  322 


3G6  THE    NATIONAL   GOVERNMENT 


tion  of  an  amendment  providing  a  method  for  dissolving  the 
existiu"  Federal  tie,  whereupon  such  method  would  be  applied 
so  as  to  form  new  unions,  or  permit  each  State  to  become  an 
absolutely  sovereign  and  independent  commonwealth.  The 
power  of  the  people  of  the  United  States  appears  competent  to 
effect  this,  should  it  ever  be  desired,  in  a  perfectly  legal  way, 
just  as  the  British  Parliament  is  legally  competent  to  re-divide 
Great  Britain  into  the  sixteen  or  eighteen  independent  king- 
doms which  existed  within  the  island  in  the  eighth  century. 

The  amendments  made  by  the  above  process  (A  +  X)  to  the 
Constitution  have  been  in  all  fifteen  in  number.  These  have 
been  made  on  four  occasions,  and  fall  into  four  groups,  two  of 
which  consist  of  one  amendment  each.  The  first  group,  in- 
cluding ten  amendments  made  immediately  after  the  adoption 
of  the  Constitution,  ought  to  be  regarded  as  a  supplement  or 
postscript  to  it,  rather  than  as  changing  it.  They  constitute  what 
the  Americans,  following  the  English  precedent,  call  a  Bill  of 
Eights,  securing  the  individual  citizen  and  the  States  against 
the  encroachments  of  Federal  power.^  The  second  and  third 
groups,  if  a  single  amendment  can  be  properly  called  a  group 
(viz.  amendments  xi.  and  xii.)  are  corrections  of  minor  defects 
which  had  disclosed  themselves  in  the  working  of  the  Constitu- 
tion.^ The  fourth  group  is  the  only  one  which  marked  a 
political  crisis  and  registered  a  political  victory.  It  comprises 
three  amendments  (xiii.  xiv.  xv.)  which  forbid  slavery,  define 
citizenship,  secure  the  suffrage  of  citizens  against  attempts  by 
States  to  discriminate  to  the  injury  of  particular  classes,  and 
extend  Federal  protection  to  those  citizens  who  may  suffer 
from  the  operation  of  certain  kinds  of  unjust  State  laws. 
These  three  amendments  are  the  outcome  of  the  War  of  Seces- 
sion, and  were  needed  in  order  to  confirm  and  secure  for  the 
future  its  results.  The  requisite  majority  of  States  was  ob- 
tained under  conditions  altogether  abnormal,  some  of  the  lately 
conquered  States  ratifying  while  actually  controlled  by  the 
northern  armies,  others  as  the  price  which  they  were  obliged 

^  These  ten  amendments  wei'e  proposed  by  the  first  Congress,  having  been 
framed  by  it  out  of  103  amendments  suggested  by  various  States,  and  were 
ratified  by  all  the  States  but  three.     They  took  effect  in  December  1791. 

-  The  eleventh  amendment  negatived  a  construction  which  the  Supreme 
court  had  put  upon  its  own  judicial  powers  (see  above,  p.  232) ;  the  twelfth 
corrected  a  fault  in  the  method  of  choosing  the  President. 


CHAP,  xxxii    AMENDMENT   OF   THE    CONSTITUTION  367 

to  pay  for  the  re-admission  to  Congress  of  their  senators  and 
representatives.^  The  details  beh)ng  to  history :  all  we  need 
here  note  is  that  these  deep-reaching,  but  under  the  circum- 
stances perhaps  unavoidable,  changes  were  carried  through  not 
by  the  free  will  of  the  peoples  of  three-fourths  of  the  States, 
but  under  the  pressure  of  a  majority  which  had  triumphed  in 
a  great  war,  and  used  its  command  of  the  National  government 
and  military  strength  of  the  Union  to  effect  purposes  deemed 
indispensable  to  the  reconstruction  of  the  Federal  system.^ 

Many  amendments  to  the  Constitution  have  been  at  various 
times  suggested  to  Congress  by  Presidents,  or  brought  forward 
in  Congress  by  members,  but  very  few  of  these  have  ever  ob- 
tained the  requisite  two-thirds  vote  of  both  Houses.  In  1789, 
however,  and  again  in  1807,  amendments  were  passed  by  Con- 
gress and  submitted  to  the  States  for  which  the  requisite 
majority  of  three-fourths  of  the  States  was  not  obtained ;  and 
in  February  and  March  1861  an  amendment  forbidding  the 
Constitution  to  be  ever  so  amended  as  to  authorize  Congress 

1  The  thirteenth  amendment  was  proposed  by  Congress  in  February  18G5, 
ratified  and  declared  in  force  December  18G5 ;  the  fourteenth  was  proposed  by 
Congress  June  186G,  ratified  and  declared  in  force  July  1868 ;  the  fifteenth  was 
proposed  by  Congress  February  1869,  ratified  and  declared  in  force  March 
1870.  The  fourteenth  amendment  had  given  the  States  a  strong  motive  for 
enfranchising  the  negroes  by  cutting  down  the  representation  in  Congress  of 
any  State  which  excluded  male  inhabitants  (being  citizens  of  the  United 
States)  from  the  suffrage;  the  fifteenth  went  further  and  forbade  "race, 
colour,  or  previous  condition  of  servitude,"  to  be  made  a  ground  of  exclusion. 
The  grounds  for  this  bold  step  were  succinctly  set  forth  by  Senator  Willey  (of 
West  Virginia)  when  he  said  that  the  suffrage  was  the  only  sure  guarantee  the 
negro  could  have  in  many  parts  of  the  country  for  the  enjoyment  of  his  civil 
rights ;  that  it  would  be  a  safer  shield  than  law,  and  that  it  was  required  by 
the  demands  of  justice,  the  principles  of  human  liberty,  and  the  spirit  of  Chris- 
tian civilization. 

The  effect  of  these  three  amendments  was  fully  considered  by  the  Supreme 
court  (in  1872)  in  the  so-called  Slaughter-house  Cases  (16  Wall.  82),  the  effect 
of  which  is  thus  stated  by  Mr.  Justice  Miller:  "With  the  exception  of  the 
specific  provisions  in  the  three  am.endments  for  the  protection  of  the  per- 
sonal rights  of  the  citizens  and  people  of  the  United  States,  and  the  necessary 
restrictions  upon  the  power  of  the  States  for  that  purpose,  with  the  additions 
to  the  power  of  the  general  government  to  enforce  those  provisions,  no  siib- 
stantial  change  has  been  made  in  the  relations  of  the  State  governments  to 
the  Federal  government."  —  Address  delivered  before  the  University  of  Mich- 
igan, 1887. 

2  But  though  military  coercion  influenced  the  adoption  of  the  thirteenth 
amendment,  while  political  coercion  bore  a  large  part  in  securing  the  adoption 
of  the  others,  it  must  be  remembered  that  some  clianges  in  th.e  Constitution 
were  an  absolutely  necessary  corollary  to  the  war  which  had  just  ended. 


368  THE   NATIONAL   GOVERNMENT  tart  i 

to  interfere  with  the  "  domestic  institutions,"  including  slavery, 
of  any  State,  was  passed  in  both  Houses,  but  never  submitted  to 
the  States,  because  war  broke  out  immediately  afterwards.  It 
Avould  doubtless,  had  peace  been  preserved,  have  failed  to  ob- 
tain the  acceptance  of  three-fourths  of  the  States,  and  its  effect 
could  only  have  been  to  require  those  who  might  thereafter 
propose  to  amend  the  Constitution  so  as  to  deal  with  slavery,  to 
propose  also  the  repeal  of  this  particular  amendment  itself.^ 

The  moral  of  these  facts  is  not  far  to  seek.  Although  it 
has  long  been  the  habit  of  the  Americans  to  talk  of  their 
Constitution  with  almost  superstitious  reverence,  there  have 
often  been  times  when  leading  statesmen,  perhaps  even  politi- 
cal parties,  would  have  materially  altered  it  if  they  could  have 
done  so.  There  have,  moreover,  been  some  alterations  sug- 
gested in  it,  which  the  impartial  good  sense  of  the  wise  would 
have  approved,  but  which  have  never  been  submitted  to  the 
States,  because  it  was  known  they  could  not  be  carried  by  the 
requisite   majority.^     If,   therefore,   comparatively   little   use 

1  The  Greek  republics  of  antiquity  sometimes  placed  some  particular  law 
under  a  special  sanction  by  denouncing  the  penalty  of  death  on  any  one  who 
should  propose  to  repeal  it.  In  such  cases,  the  man  who  intended  to  repeal  the 
law  so  sanctioned  of  course  began  by  proposing  the  repeal  of  the  law  which 
imposed  the  penalty.  So  it  would  have  been  in  this  case :  so  it  must  always 
be.  No  sovereign  body  can  limit  its  own  powei-s.  The  British  Parliament 
seems  to  have  attempted  to  bind  itself  by  providing  in  the  Act  of  Union  with 
Ireland  (39  and  40  George  III.,  c.  67)  that  the  maintenance  of  the  Protestant 
Episcopal  Church  as  an  Established  Church  in  Ireland  should  be  "  deemed  an 
essential  and  fundamental  part  of  the  Union."  That  Church  was,  however,  dis- 
established in  1869  with  as  much  ease  as  though  this  provision  had  never  existed. 

■-  In  the  Forty-ninth  Congress  (1884-86)  no  fewer  than  forty-seven  proposi- 
tions were  introrluced  for  tlie  amendment  of  the  Constitution,  some  of  them  of 
a  sweeping,  several  of  a  rather  complex,  nature.  (Some  of  these  covered  the 
same  ground,  so  the  total  number  of  alterations  proposed  was  less  than  forty- 
seven.)  None  seems  to  have  been  voted  on  by  Congress ;  and  only  five  or  six 
even  deserved  serious  consideration.  One  at  least,  that  enabling  the  President 
to  veto  items  in  an  approi^riation  bill,  would  have  effected  a  great  improve- 
ment. I  find  among  them  the  following  proposals:  To  prohibit  the  sale  of 
alcoholic  liquors,  to  forbid  polygamy,  to  confer  the  suffrage  on  women,  to  vest 
the  election  of  the  President  directly  in  the  people,  to  elect  representatives 
for  three  instead  of  two  years,  to  choose  senators  by  popular  election,  to 
empower  Congress  to  limit  the  hours  of  labour,  to  empower  Congress  to  pass 
uniform  laws  regarding  marriage  and  divorce,  to  enable  the  people  to  elect 
certain  Federal  officers,  to  forbid  Congress  to  pass  any  local  private  or  special 
enactment,  to  forbid  Congress  to  direct  the  payment  of  claims  legally  barred 
by  lapse  of  time,  to  forbid  the  States  to  liire  out  the  labour  of  prisoners. 

In  the  first  session  of  the  Fifty-first  Congress  twenty-eight  such  propositions 


CHAP.  XXXII    AMENDMENT   OF   THE   CONSTITUTION  369 


has  been  made  of  the  provisions  for  amendment,  this  has 
been  due,  not  solely  to  the  excellence  of  the  original  instru- 
ment, but  also  to  the  difficulties  which  surround  the  process  of 
change.  Alterations,  though  perhaps  not  large  alterations, 
have  been  needed,  to  cure  admitted  faults  or  to  supply  dan- 
gerous omissions,  but  the  process  has  been  so  difficult  that  it 
has  never  been  successfully  applied,  except  either  to  matters  of 
minor  consequence  involving  no  party  interests  (Amendments 
xi.  and  xii.),  or  in  the  course  of  a  revolutionary  movement  which 
had  dislocated  the  Union  itself  (Amendments  xiii.  xiv.  xv.). 

Why  then  has  the  regular  procedure  for  amendment  proved 
in  practice  so  hard  to  apply  ? 

Partly,  of  course,  owing  to  the  inherent  disputatiousness  and 
perversity  (what  the  Americans  call  "  cussedness  ")  of  bodies 
of  men.  It  is  difficult  to  get  two-thirds  of  two  assemblies  (the 
Houses  of  Congress)  and  three-fourths  of  forty-four  com- 
monwealths, each  of  Avhich  acts  by  two  assemblies,  for  the 
State  legislatures  are  all  double-chambered,  to  agree  to  the 
same  practical  proposition.  Except  under  the  pressure  of 
urgent  troubles,  such  as  were  those  which  procured  the  accept- 
ance of  the  Constitution  itself  in  1788,  few  persons  or  bodies 
will  consent  to  forego  objections  of  detail,  perhaps  in  them- 
selves reasonable,  for  the  mere  sake  of  agreeing  to  what  others 
have  accepted.  They  want  to  have  what  seems  to  themselves 
the  very  best,  instead  of  a  second  best  suggested  by  some  one 
else.  Now,  bodies  enjoying  so  much  legal  independence  as  do 
the  legislatures  of  the  States,  far  from  being  disposed  to  defer 
to  Congress  or  to  one  another,  are  more  jealous,  more  sus- 
picious, more  vain  and  opinionated,  than  so  many  individuals. 
Nothing  but  a  violent  party  spirit,  seeking  either  a  common 
party  object  or  individual  gain  to  flow  from  party  success, 
makes  them  work  together. 

If  an  amendment  comes  to  the  legislatures  recommended 
by  the  general  voice  of  their  party,  they  will  be  quick  to 
adopt  it.  But  in  that  case  it  will  encounter  the  hostility  of 
the  opposite  party,  and  parties  are  in  most  of  the  Northern 
States  pretty  evenly  balanced.     It  is  seldom  that  a  two-thirds 

were  introduced,  including  proposals  for  the  prohibition  of  lotteries,  to  sup- 
press trusts  and  prohibit  gambling  in  agricultural  products,  to  modify  the 
clause  in  the  Federal  Constitution  regarding  the  obligation  of  contracts. 
VOL.  I  2  B 


370  THE   NATIONAL   GOVERNMENT  part  i 

majority  in  either  House  of  Congress  can  be  secured  on  a 
party  issue;  and  of  course  such  majorities  in  both  Houses,  and 
a  three-fourths  majority  of  State  legislatures  on  a  party  issue, 
are  still  less  probable.  Now,  in  a  country  pervaded  by  the 
spirit  of  party,  most  questions  either  are  at  starting,  or  soon 
become,  controversial.  A  change  in  the  Constitution,  however 
useful  its  ultimate  consequences,  is  likely  to  be  for  the 
moment  deemed  more  advantageous  to  one  party  than  to  the 
other,  and  this  is  enough  to  make  the  other  party  oppose  it. 
The  mere  fact  that  a  proposal  comes  from  one  side,  rouses  the 
suspicion  of  the  other.  There  is  always  that  dilemma  of 
which  England  has  so  often  felt  the  evil  consequences.  If  a 
measure  of  reform  is  pressing,  it  becomes  matter  of  party  con- 
tention, and  excites  passion.  If  it  is  not  pressing,  neither 
party,  having  other  and  nearer  aims,  cares  to  take  it  up  and 
push  it  through.  In  America,  a  party  amendment  to  the  Con- 
stitution can  very  seldom  be  carried.  A  non-party  amendment 
falls  into  the  category  of  those  things  which,  because  they  are 
everybody's  business,  are  the  business  of  nobody. 

It  is  evident  when  one  considers  the  nature  of  a  Eigid  or 
Supreme  constitution,  that  some  method  of  altering  it  so  as  to 
make  it  conform  to  altered  facts  and  ideas  is  indispensable.  A 
European  critic  may  remark  that  the  American  method  has 
failed  to  answer  the  expectations  formed  of  it.  The  belief,  he 
will  say,  of  its  authors  was  that  while  nothing  less  than  a 
general  agreement  would  justify  alteration,  that  agreement 
would  exist  when  omissions  impeding  its  working  were  dis- 
covered. But  this  has  not  come  to  pass.  There  have  been 
long  and  fierce  controversies  over  the  construction  of  sev- 
eral points  in  the  Constitution,  over  the  right  of  Congress 
to  spend  money  on  internal  improvements,  to  charter  a 
national  bank,  to  impose  a  protective  tariff,  above  all,  over 
the  treatment  of  slavery  in  the  Territories.  But  the  method 
of  amendment  was  not  applied  to  any  of  these  questions, 
because  no  general  agreement  could  be  reached  upon  them, 
or  indeed  upon  any  but  secondary  matters.  So  the  strug- 
gle over  the  interpretation  of  a  document  which  it  was 
found  impossible  to  amend,  passed  from  the  laAV  courts  to 
the  battle-field.  Americans  reply  to  such  criticisms  by  ob- 
serving that  the  power  of  amending  the  Constitution  is  one 


•CHAP.  XXXII     AMENDMENT   OF   THE   CONSTITUTION  371 

which  cannot  prudently  be  employed  to  conclude  current  polit- 
ical controversies,  that  if  it  were  so  used  no  constitution 
could  be  either  rigid  or  reasonably  permanent,  that  some 
latitude  of  construction  is  desirable,  and  that  in  the  above- 
mentioned  cases  amendments  excluding  absolutely  one  or 
other  of  the  constructions  contended  for  would  either  have 
tied  down  the  legislature  too  tightly  or  have  hastened  a  prob- 
ably inevitable  conflict. 

Ought  the  process  of  change  to  be  made  easier  ?  say  by 
requiring  only  a  bare  majority  in  Congress,  and  a  two-thirds 
majority  of  States  ?  American  statesmen  think  not.  A  swift 
and  easy  method  would  not  only  weaken  the  sense  of  security 
which  the  rigid  Constitution  now  gives,  but  would  increase  the 
troubles  of  current  politics  by  stimulating  a  majority  in  Con- 
gress to  frequently  submit  amendments  to  the  States.  The 
habit  of  mending  would  turn  into  the  habit  of  tinkering. 
There  would  be  too  little  distinction  between  changes  in  the 
ordinary  statute  law,  which  require  the  agreement  of  majori- 
ties in  the  two  Houses  and  the  President,  and  changes  in  the 
more  solemnly  enacted  fundamental  law.  And  the  rights  of 
the  States,  upon  which  congressional  legislation  cannot  now 
directly  encroach,  would  be  endangered.  The  French  scheme, 
under  which  an  absolute  majority  of  the  two  Chambers,  sitting 
together,  can  amend  the  Constitution ;  or  even  the  Swiss 
scheme,  under  which  a  bare  majority  of  the  voting  citizens, 
coupled  with  a  majority  of  the  Cantons,  can  ratify  constitu- 
tional changes  drafted  by  the  Chambers,  in  pursuance  of  a  pre- 
vious popular  vote  for  the  revision  of  the  Constitution,^  is 
considered  by  the  Americans  dangerously  lax.  The  idea 
reigns  that  solidity  and  security  are  the  most  vital  attributes 
of  a  fundamental  law. 

From  this  there  has  followed  another  interesting  result. 
Since  modifications  or  developments  are  often  needed,  and 
since  they  can  rarely  be  made  by  amendment,  some  other  way 
of  making  them  must  be  found.  The  ingenuity  of  lawyers  has 
discovered  one  method  in  interpretation,  while  the  dexterity  of 
politicians  has  invented  a  variety  of  devices  whereby  legisla- 
tion may  extend,  or  usage  may  modify,  the  express  provisions 
of  the  apparently  immovable  and  inflexible  instrument. 
1  Seethe  Swiss  Federal  Constitution,  Arts.  118-121. 


CHAPTER  XXXIII 

THE    INTERPRETATION    OF    THE    CONSTITUTION 

The  Constitution  of  England  is  contained  in  hundreds  of 
volumes  of  statutes  and  reported  cases ;  the  Constitution  of 
the  United  States  (including  the  amendments)  may  be  read 
through  aloud  in  twenty-three  minutes.  It  is  about  half  as 
long  as  St.  Paul's  first  Epistle  to  the  Corinthians,  and  only  one- 
fortieth  part  as  long  as  the  Irish  Land  Act  of  1881.  History 
knows  few  instruments  which  in  so  few  words  lay  down  equally 
momentous  rules  on  a  vast  range  of  matters  of  the  highest  im- 
portance and  complexity.  The  Convention  of  1787  were  well 
advised  in.  making  their  draft  short,  because  it  was  essential 
that  the  people  should  comprehend  it,  because  fresh  differences 
of  view  would  have  emerged  the  further  they  had  gone  into 
details,  and  because  the  more  one  specifies,  the  more  one  has  to 
specify  and  to  attempt  the  impossible  task  of  providing  before- 
hand for  all  contingencies.  These  sages  were  therefore  con- 
tent to  lay  down  a  few  general  rules  and  principles,  leaving 
some  details  to  be  filled  in  by  congressional  legislation,  and 
foreseeing  that  for  others  it  would  be  necessary  to  trust  to 
interpretation. 

It  is  plain  that  the  shorter  a  law  is,  the  more  general  must 
its  language  be,  and  the  greater  therefore  the  need  for  interpre- 
tation. So  too  the  greater  the  range  of  a  law,  and  the  more 
numerous  and  serious  the  cases  which  it  governs,  the  more 
frequently  will  its  meaning  be  canvassed.  There  have  been 
statutes  dealing  with  private  law,  such  as  the  Lex  Aquilia  at 
Rome  and  the  Statute  of  Frauds  in  England,  on  which  many 
volumes  of  commentaries  have  been  written,  and  thousands  of 
juristic  and  judicial  constructions  placed.  Much  more  then 
must  we  expect  to  find  great  pviblic  and  constitutional  enact- 
ments subjected  to  the  closest  scrutiny  in  order  to  discover 

372 


CHAP.  XXXIII     INTERPRETATION   OF   CONSTITUTION  373 

every  shade  of  meaning  which  their  words  can  be  made  to  bear. 
Probably  no  Avriting  except  the  Xew  Testament,  the  Koran, 
the  Pentateuch,  and  the  Digest  of  the  Emperor  Justinian, 
has  employed  so  much  ingenuity  and  labour  as  the  Ameri- 
can Constitution,  in  sifting,  weighing,  comparing,  illustrating, 
twisting,  and  torturing  its  text.  It  resembles  theological  writ- 
ings in  this,  that  both,  while  taken  to  be  immutable  guides, 
have  to  be  adapted  to  a  constantly  changing  world,  the  one  to 
political  conditions  which  vary  from  year  to  year  and  never  re- 
turn to  their  former  state,  the  other  to  new  phases  of  thought 
and  emotion,  new  beliefs  in  the  realms  of  physical  and  ethical 
philosophy.  There  must,  therefore,  be  a  development  in  con- 
stitutional formulas,  just  as  there  is  in  theological.  It  will 
come,  it  cannot  be  averted,  for  it  comes  in  virtue  of  a  law  of 
nature:  all  that  men  can  do  is  to  shut  their  eyes  to  it,  and 
conceal  the  reality  of  change  under  the  continued  use  of  time- 
honoured  phrases,  trying  to  persuade  themselves  that  these 
phrases  mean  the  same  thing  to  their  minds  to-day  as  they 
meant  generations  or  centuries  ago.  As  a  great  theologian 
says,  "In  a  higher  world  it  is  otherwise;  but  here  below  to 
live  is  to  change,  and  to  be  perfect  is  to  have  changed  often."  ^ 

The  Constitution  of  the  United  States  is  so  concise  and  so 
general  in  its  terms,  that  even  had  America  been  as  slowly 
moving  a  country  as  China,  many  questions  must  have  arisen 
on  the  interpretation  of  the  fundamental  law  which  would  have 
modified  its  aspect.  But  America  has  been  the  most  swiftly 
expanding  of  all  countries.  Hence  the  questions  that  have 
presented  themselves  have  often  related  to  matters  which  the 
framers  of  the  Constitution  could  not  have  contemplated. 
Wiser  than  Justinian  before  them  or  Napoleon  after  them, 
they  foresaw  that  their  work  would  need  to  be  elucidated  by 
judicial  commentary.  But  they  were  far  from  conjecturing 
the  enormous  strain  to  which  some  of  their  expressions  would 
be  subjected  in  the  effort  to  apply  them  to  new  facts. 

I  must  not  venture  on  any  general  account  of  the  interpreta- 
tion of  the  Constitution,  nor  attempt  to  set  forth  the  rules  of 
construction  laid  down  by  judges  and  commentators,  for  this 
is  a  vast  matter  and  a  matter  for  law  books.  All  that  this 
chapter  has  to  do  is  to  indicate,  very  generally,  in  what  way 
1  Newman,  Essay  on  Development,  p.  39. 


374  THE   NATIONAL   GOVERNMENT  part  i 

and  with  what  results  the  Constitution  has  been  expanded,  de- 
veloped, modified,  by  interpretation ;  and  with  that  view  there 
are  three  points  that  chiefly  need  discussion :  (1)  the  authori- 
ties entitled  to  interpret  the  Constitution,  (2)  the  main  prin- 
ciples followed  in  determining  whether  or  no  the  Constitution 
has  granted  certain  powers,  (3)  the  checks  on  possible  abuses 
of  the  interpreting  power. 

1.  To  whom  does  it  belong  to  interpret  the  Constitution  ? 
Any  question  arising  in  a  legal  proceeding  as  to  the  meaning 
and  application  of  this  fundamental  law  will  evidently  be 
settled  by  the  courts  of  law.  Every  court  is  equally  bound  to 
pronounce  and  competent  to  pronounce  on  such  questions,  a 
State  court  no  less  than  a  Federal  court ;  ^  but  as  all  the  more 
important  questions  are  carried  by  appeal  to  the  supreme 
Federal  court,  it  is  practically  that  court  whose  opinion  finally 
determines  them. 

Where  the  Federal  courts  have  declared  the  meaning  of  a 
law,  every  one  ought  to  accept  and  guide  himself  by  their 
deliverance.  But  there  are  always  questions  of  construction 
which  have  not  been  settled  by  the  courts,  some  because  they 
have  not  happened  to  arise  in  a  law-suit,  others  because  they 
are  such  as  can  scarcely  arise  in  a  law-suit.  As  regards  such 
points,  every  authority,  Federal  or  State,  as  well  as  every  citi- 
zen, must  be  guided  by  the  best  view  he  or  they  can  form  of 
the  true  intent  and  meaning  of  the  Constitution,  taking,  of 
course,  the  risk  that  this  view  may  turn  out  to  be  wrong. 

There  are  also  points  of  construction  which  every  court, 
following  a  well-established  practice,  will  refuse  to  decide,  be- 
cause they  are  deemed  to  be  of  '*  a  purely  political  nature,"  a 
vague  description,  but  one  which  could  be  made  more  specific 
only  by  an  enumeration  of  the  cases  which  have  settled  the 
practice.  These  points  are  accordingly  left  to  the  discretion 
of  the  executive  and  legislative  powers,  each  of  which  forms 
its  view  as  to  the  matters  falling  within  its  sphere,  and  in 
acting  on  that  view  is  entitled  to  the  obedience  of  the  citizens 
and  of  the  States  also. 

It  is  therefore  an  error  to  svippose  that  the  judiciary  is  the 
only  interpreter  of  the  Constitution,  for  a  certain  field  remains 
open  to  the  other  authorities  of  the  government,  whose  views 
1  See  Chapter  XXIV.  ante. 


CHAP.  XXXIII     INTERPRETATION  OF  CONSTITUTION  375 

need  not  coincide,  so  that  a  dispute  between  those  authorities, 
although  turning  on  the  meaning  of  the  Constitution,  may  be 
incapable  of  being  settled  by  any  legal  proceeding.  This 
causes  no  great  confusion,  because  the  decision,  whether  of 
the  political  or  the  judicial  authority,  is  conclusive  so  far  as 
regards  the  particular  controversy  or  matter  passed  upon. 

The  above  is  the  doctrine  now  generally  accepted  in 
America.  But  at  one  time  the  Presidents  claimed  the  much 
wider  right  of  being,  except  in  questions  of  pure  private  law, 
generally  and  prma/ac?e  entitled  to  interpret  the  Constitution 
for  themselves,  and  to  act  on  their  own  interpretation,  even 
when  it  ran  counter  to  that  delivered  by  the  Supreme  court. 
Thus  Jefferson  denounced  the  doctrine  laid  down  in  the  famous 
judgment  of  Chief-Justice  Marshall  in  the  case  of  Marhury  v. 
Madison;'^  thus  Jackson  insisted  that  the  Supreme  court  was 
mistaken  in  holding  that  Congress  had  power  to  charter  the 
United  States  bank,  and  that  he,  knowing  better  than  the 
court  did  what  the  Constitution  meant  to  permit,  was  entitled 
to  attack  the  bank  as  an  illegal  institution,  and  to  veto  a  bill 
proposing  to  re-charter  it.^  Majorities  in  Congress  have  more 
than  once  claimed,  for  themselves  the  same  independence. 
But  of  late  years  both  the  executive  and  the  legislature  have 
practically  receded  from  the  position  which  the  language 
formerly  used  seemed  to  assert ;  while,  on  the  other  hand,  the 
judiciary,  by  their  tendency  during  the  whole  course  of  their 
history  to  support  every  exercise  of  power  which  they  did  not 
deem  plainly  unconstitutional,  have  left  a  wide  field  to  those 
authorities.  If  the  latter  have  not  used  this  freedom  to 
stretch  the  Constitution  even  more  than  they  have  done,  it  is 

1  As  the  court  dismissed  upon  another  point  in  the  case  the  proceedings 
against  Mr.  Secretary  Madison,  the  question  whether  Marshall  was  right  did 
not  arise  in  a  practical  form. 

2  There  was,  however,  nothing  unconstitutional  in  the  course  which  Jackson 
actually  took  in  withdrawing  the  deposits  from  the  United  States  Bank  and  in 
vetoini;  the  bill  for  a  re-charter.  It  is  still  generally  admitted  that  a  President 
has  the  right  in  considering  a  measure  coming  to  him  from  Congress  to  form 
his  own  judgment,  not  only  as  to  its  expediency  hut  as  to  its  conformability  to 
the  Constitution.  Judge  Cooley  observes  to  me :  "If  Jackson  sincerely  believed 
that  the  Constitution  had  been  violated  in  the  first  and  second  charter,  he  was 
certainly  not  bound,  when  a  third  was  proposed,  to  surrender  his  opinion  in 
obedience  to  precedent.  The  question  of  approving  a  new  charter  was  politi- 
cal; and  he  was  entirely  within  the  line  of  duty  in  refusing  it  for  any  reasons 
which,  to  his  own  mind,  seemed  sufficient." 


376  THE   NATIONAL   GOVERNMENT 


not  solely  the  courts  of  law,  but  also  public  opinion  and  their 
own  professional  associations  (most  presidents,  ministers,  and 
congressional  leaders  having  been  lawyers)  that  have  checked 
them, 

II.  The  Constitution  has  been  expanded  by  construction  in 
two  ways.  Powers  have  been  exercised,  sometimes  by  the 
President,  more  often  by  the  legislature,  in  passing  statutes, 
and  the  question  has  arisen  whether  the  powers  so  exercised 
were  rightfully  exercised,  i.e.  were  really  contained  in  the 
Constitution.  When  the  question  was  resolved  in  the  affirma- 
tive by  the  court,  the  power  has  been  henceforth  recognized  as 
a  part  of  the  Constitution,  although,  of  course,  liable  to  be 
subsequently  denied  by  a  reversal  of  the  decision  which  estab- 
lished it.  This  is  one  way.  The  other  is  where  some  piece  of 
State  legislation  alleged  to  contravene  the  Constitution  has 
been  judicially  decided  to  contravene  it,  and  to  be  therefore 
invalid.  The  decision,  in  narrowing  the  limits  of  State  author- 
ity, tends  to  widen  the  prohibitive  authority  of  the  Constitu- 
tion, and  confirms  it  in  a  range  and  scope  of  action  which  was 
previously  doubtful. 

Questions  of  the  above  kinds  sometimes  arise  as  questions  of 
Interpretation  in  the  strict  sense  of  the  term,  i.e.  as  questions 
of  the  meaning  of  a  term  or  phrase  which  is  so  far  ambiguous 
that  it  might  be  taken  either  to  cover  or  not  to  cover  a  case 
apparently  contemplated  by  the  people  when  they  enacted  the 
Constitution.  Sometimes  they  are  rather  questions  to  which 
we  may  apply  the  name  of  Construction,  i.e.  the  case  that  has 
arisen  is  one  apparently  not  contemplated  by  the  enactors  of 
the  Constitution,  or  one  which,  though  possibly  contemplated, 
has  for  brevity's  sake  been  omitted ;  but  the  Constitution  has 
nevertheless  to  be  applied  to  its  solution.  In  the  former  ease 
the  enacting  power  has  said  something  which  bears,  or  is  sup- 
posed to  bear,  on  the  matter,  and  the  point  to  be  determined 
is.  What  do  the  words  mean  ?  In  the  latter  it  has  not  directly 
referred  to  the  matter,  and  the  question  is.  Can  anything  be 
gathered  from  its  language  which  covers  the  point  that  has 
arisen,  which  establishes  a  principle  large  enough  to  reach 
and  include  an  unmentioned  case,  indicating  wliat  the  enact- 
ing authority  would  have  said  had  the  matter  been  present 
to  its  mind,  or  had  it  thought  fit  to  enter  on  an  enumera- 


CHAP.  XXXIII     INTERPRETATION   OF   CONSTITUTION  377 

tion  of  specific  instances  ?  ^  As  the  Constitution  is  not  only 
a  well-drafted  instrument  with  few  ambiguities  but  also  a 
short  instrument  which  speaks  in  very  general  terms,  mere  in- 
terpretation has  been  far  less  difficult  than  construction.^  It 
is  through  the  latter  chiefly  that  the  Constitution  has  been,  and 
still  continues  to  be,  developed  and  expanded.  The  nature  of 
these  expansions  will  appear  from  the  nature  of  the  Federal 
government.  It  is  a  government  of  delegated  and  specified 
powers.  The  people  have  entrusted  to  it,  not  the  plenitude  of 
their  own  authority  but  certain  enumerated  functions,  and  its 
lawful  action  is  limited  to  these  functions.  Hence,  when  the 
Federal  executive  does  an  act,  or  the  Federal  legislature  passes 
a  law,  the  question  arises  —  Is  the  poAver  to  do  this  act  or  pass 
this  law  one  of  the  powers  which  the  people  have  by  the  Con- 
stitution delegated  to  their  agents  ?  The  power  may  never 
have  been  exerted  before.  It  may  not  be  found  expressed,  in 
so  many  words,  in  the  Constitution.  Nevertheless  it  may,  upon 
the  true  construction  of  that  instrument,  taking  one  clause 
with  another,  be  held  to  be  therein  contained. 

1  For  example,  the  question  whether  an  agreement  carried  out  between  a 
State  and  an  individual  by  a  legislative  act  of  a  State  is  a  "  contract  "  within 
the  meaning  of  the  prohibition  against  impairing  the  obligation  of  a  contract, 
is  a  question  of  interpretation  proper,  for  it  turns  on  the  determination  of  the 
meaning  of  the  term  "  contract."  The  question  whether  Congress  had  power 
to  pass  an  act  emancipating  the  slaves  of  persons  aiding  in  a  rebellion  was  a 
question  of  construction,  because  the  case  did  not  directly  arise  under  any  pro- 
vision of  the  Constitution,  and  was  apparently  not  contemplated  by  the 
framers  thereof.  It  was  a  question  which  had  to  be  solved  by  considering  what 
the  war  powers  contained  in  the  Constitution  might  be  taken  to  imply.  The 
question  whether  the  National  government  has  power  to  issue  treasury  notes  is 
also  a  question  of  construction,  because,  although  this  is  a  case  which  may 
possibly  have  been  contemplated  when  the  Constitution  was  enacted,  it  is  to  be 
determined  by  ascertaining  whether  the  power  "  to  borrow  money  "  covers  this 
particular  method  of  borrowing.  There  is  no  ambiguity  about  the  word 
"borrow";  the  difficulty  is  to  pronounce  which  out  of  various  methods  of 
borrowing,  some  of  which  probably  were  contemplated,  can  be  properly 
deemed,  on  a  review  of  the  whole  financial  attributes  and  functions  of  the 
National  government,  to  be  included  within  the  borrowing  power. 

As  to  the  provision  restraining  States  from  passing  laws  impairing  the  obli- 
gation of  a  contract,  see  note  at  the  end  of  this  volume  on  the  case  of  Dart- 
mouth College  V.  Woodicard. 

2  As  the  Constitution  is  deemed  to  proceed  from  the  People  who  enacted  it, 
not  from  the  Convention  who  drafted  it,  it  is  regarded  for  the  purposes  of  inter- 
pretation as  being  the  work  not  of  a  group  of  lawyers  but  of  the  people  them- 
selves. For  a  useful  summary  of  some  of  the  general  rules  of  constitutional 
interpretation,  see  Patterson's  Federal  Restraints  on  State  Action,  pp.  215-217. 


378  THE  NATIONAL  GOVERNMENT  part  i 

Xow  the  doctrines  laid  down  by  Clnef-Justice  Marshall,  and 
on  which  the  courts  have  constantly  since  proceeded,  may  be 
summed  up  in  two  propositions. 

1.  Every  power  alleged  to  be  vested  in  the  National  govern- 
ment, or  any  organ  thereof,  must  be  affirmatively  shown  to 
have  been  granted.  There  is  no  presumption  in  favour  of  the 
existence  of  a  power ;  on  the  contrary,  the  burden  of  proof 
lies  on  those  who  assert  its  existence,  to  point  out  something 
in  the  Constitution  which,  either  expressly  or  by  necessary  -im- 
plication, confers  it.  Just  as  an  agent,  claiming  to  act  on  be- 
half of  his  principal,  must  make  out  by  positive  evidence  that 
his  principal  gave  him  the  authority  he  relies  on ;  so  Congress, 
or  those  who  rely  on  one  of  its  statutes,  are  bound  to  show  that 
the  people  have  authorized  the  legislature  to  pass  the  statute. 
The  search  for  the  power  will  be  conducted  in  a  spirit  of  strict 
exactitude,  and  if  there  be  found  in  the  Constitution  nothing 
which  directly  or  impliedly  conveys  it,  then  whatever  the  ex- 
ecutive or  legislature  of  the  National  government,  or  both  of 
them  together,  may  have  done  in  the  persuasion  of  its  existence, 
must  be  deemed  null  and  void,  like  the  act  of  any  other  unau- 
thorized agent.^ 

2.  When  once  the  grant  of  a  power  by  the  people  to  the 
National  government  has  been  established,  that  power  will  be 
construed  broadly.  The  strictness  applied  in  determining  its 
existence  gives  place  to  liberality  in  supporting  its  application. 
The  people  —  so  Marshall  and  his  successors  have  argued  — 
when  they  confer  a  power,  must  be  deemed  to  confer  a  wide  dis- 
cretion as  to  the  means  whereby  it  is  to  be  used  in  their  service. 
For  their  main  object  is  that  it  should  be  used  vigorously  and 
wisely,  which  it  cannot  be  if  the  choice  of  methods  is  narrowly 
restricted ;  and  while  the  people  may  well  be  chary  in  delegat- 
ing powers  to  their  agents,  they  must  be  presumed,  when  they 
do  grant  these  powers,  to  grant  them  with  confidence  in  the 

1  For  instance,  several  years  ago  a  person  summoned  as  a  witness  before  a 
committee  of  the  House  of  Representatives  was  imprisoned  by  order  of  the  House 
for  refusing  to  answer  certain  questions  put  to  him.  He  sued  the  sergeant-at- 
arms  for  false  imprisonment,  and  recovered  damages,  the  Supreme  court  hold- 
ing that  as  the  Constitution  could  not  be  shown  to  have  conferred  on  either 
House  of  Congress  any  power  to  punish  for  contempt,  that  power  (though 
frequently  theretofore  exercised)  did  not  exist,  and  the  order  of  the  House 
therefore  constituted  uo  defence  for  the  sergeant's  act  {Kilbourn  v.  Thompson, 
103  United  States,  168). 


CHAP.  XXXIII     INTERPRETATION  OF   CONSTITUTION  379 

agents'  judgment,  allowing  all  that  freedom  in  using  one  means 
or  another  to  attain  the  desired  end  which  is  needed  to  ensure 
success.^  This,  which  would  in  any  case  be  the  common-sense 
view,  is  fortified  by  the  language  of  the  Constitution,  which, 
authorizes  Congress  "  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the  Govern- 
ment of  the  United  States,  or  in  any  department  or  office 
thereof."  The  sovereignty  of  the  National  government,  there- 
fore, "though  limited  to  specified  objects,  is  plenary  as  to  those 
objects  "  ^  and  supreme  in  its  sphere.  Congress,  which  cannot 
go  one  step  beyond  the  circle  of  action  which  the  Constitution 
has  traced  for  it,  may  within  that  circle  choose  any  means 
which  it  deems  apt  for  executing  its  powers,  and  is  in  its 
choice  of  means  subject  to  no  review  by  the  courts  in  their 
function  of  interpreters,  because  the  people  have  made  their 
representatives  the  sole  and  absolute  judges  of  the  mode  in 
which  the  granted  powers  shall  be  employed.  This  doctrine  of 
implied  powers,  and  the  interpretation  of  the  words  "necessary 
and  proper,"  were  for  many  years  a  theme  of  bitter  and  inces- 
sant controversy  among  American  lawyers  and  publicists.^    The 

1  For  instance,  Congress  having  power  to  declare  war,  has  power  to  prose- 
cute it  by  all  means  necessary  for  success,  and  to  acquire  territory  either  by 
conquest  or  treaty.  Having  power  to  borrow  money,  Congress  may,  if  it  thinks 
fit,  issue  treasury  notes,  and  may  make  them  legal  tender. 

2  See  Gibbons  v.  Ogden,  9  Wheat,  p.  1  sqq.,  judgment  of  Marshall,  C.-J. 

3  "The  powers  of  the  government  are  limited,  and  its  limits  are  not  to  be 
transcended.  But  the  sound  construction  of  the  Constitution  must  allow  to  the 
national  legislature  that  discretion  with  respect  to  the  means  by  which  the 
powers  it  confers  are  to  be  carried  into  execution,  which  will  enable  that  body 
to  perform  the  high  duties  assigned  to  it  in  the  manner  most  beneficial  to  the 
people.  Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the  Constitution, 
and  all  means  which  are  appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited  but  consistent  with  the  letter  and  spirit  of  the  Constitu- 
tion, are  constitutional."  —  Marshall,  C.-J.,  in  M'Cvlloch  v.  Maryland  (4  Wheat. 
316).  This  is  really  a  working-out  of  one  of  the  points  of  Hamilton's  fanious 
argument  in  favour  of  the  constitutionality  of  a  United  States  bank :  "  Every 
power  vested  in  a  government  is  in  its  nature  sovereign,  and  includes  by  force 
of  the  term  a  right  to  employ  all  the  means  requisite  and  fairly  applicable  to 
the  attainment  of  the  ends  of  such  power,  and  which  are  not  precluded  by 
restrictions  and  exceptions  specified  in  the  Constitution."—  Works  (Lodge's 
ed.),  vol.  iii.  p.  181. 

Judge  Hare  sums  up  the  matter  by  saying,  "Congress  are  sovereign  as  re- 
gards the  objects  and  within  the  limits  of  the  Constitution.  It  may  use  all 
proper  and  suitable  means  for  carrying  the  powers  conferred  by  the  Constitu- 


380  THE  NATIONAL  GOVERNMENT  part  i 

history  of  the  United  States  is  in  a  large  measure  a  history  of 
the  arguments  which  sought  to  enlarge  or  restrict  its  import. 
One  school  of  statesmen  urged  that  a  lax  construction  would 
practically  leave  the  States  at  the  mercy  of  the  National  gov- 
ernment, and  remove  those  checks  on  the  latter  which  the  Con- 
stitution was  designed  to  create ;  while  the  very  fact  that  some 
powers  were  specifically  granted  must  be  taken  to  import  that 
those  not  specified  were  withheld,  according  to  the  old  maxim 
expressio  unius  exclusio  alterius,  which  Lord  Bacon  concisely 
explains  by  saying,  "as  exception  strengthens  the  force  of  a  law 
in  cases  not  excepted,  so  enumeration  weakens  it  in  cases  not 
enumerated."  It  was  replied  by  the  opposite  school  that  to 
limit  the  powers  of  the  government  to  those  expressly  set  forth 
in  the  Constitution  would  render  that  instrument  unfit  to 
serve  the  purposes  of  a  growing  and  changing  nation,  and 
would,  by  leaving  men  no  legal  means  of  attaining  necessary 
but  originally  uncontemplated  aims,  provoke  revolution  and 
work  the  destruction  of  the  Constitution  itself.^ 

This  latter  contention  derived  much  support  from  the  fact 
that  there  were  certain  powers  that  had  not  been  mentioned  in 
the  Constitution,  but  which  were  so  obviously  incident  to  a 
national  government  that  they  must  be  deemed  to  be  raised  by 
implication.^  For  instance,  the  only  offences  which  Congress  is 
expressly  empowered  to  punish  are  treason,  the  counterfeiting 
of  the  coin  or  securities  of  the  government,  and  piracies  and 
other  offences  against  the  law  of  nations.  But  it  was  very 
early  held  that  the  power  to  declare  other  acts  to  be  offences 
against  the  United  States,  and  punish  them  as  such,  existed  as 
a  necessary  appendage  to  various  general  powers.      So  the 

tion  into  effect.  The  means  best  suited  at  one  time  may  be  inadequate  at 
another;  hence  the  need  for  vesting  a  large  discretion  in  Congress.  .  .  . 
'Necessary  and  proper'  are  therefore,  as  regards  legislation,  nearly  if  not 
quite  synonymous,  that  being  '  necessary '  which  is  suited  to  the  object  and 
calculated  to  attain  the  end  in  view."  — American  Constitutional  Law,  p.  107. 

1  See  the  philosophical  remarks  of  Story,  J.,  in  Martin  v.  Hunter's  Lessee 
(1  Wheat,  p.  304  sgg.). 

-  Stress  was  also  laid  on  the  fact  that  whereas  the  Articles  of  Confederation 
of  1781  contained  (Art.  ii.)  the  expression,  "  Each  State  retains  every  power 
and  jurisdiction  and  right  not  expressly  delegated  to  the  United  States  in  Con- 
gress assembled,"  the  Constitution  merely  says  (Amendment  x.),  "The powers 
not  granted  to  the  United  States  are  reserved  to  the  States  respectively  or  to 
the  people,"  omitting  the  word  "  expressly." 


CHAP.  XXXIII     INTERPRETATION   OF   CONSTITUTION  381 

power  to  regulate  commerce  covered  the  power  to  punish 
offences  obstructing  commerce  ;  the  power  to  manage  the  post- 
office  included  the  right  to  fix  penalties  on  the  theft  of  letters ; 
and,  in  fact,  a  whole  mass  of  criminal  law  grew  up  as  a  sanc- 
tion to  the  civil  laws  which  Congress  had  been  directed  to 
pass. 

The  three  lines  along  which  this  development  of  the  implied 
powers  of  the  government  has  chiefly  progressed,  have  been 
those  marked  out  by  the  three  express  powers  of  taxing  and 
borrowing  money,  of  regulating  commerce,  and  of  carrying  on 
war.  Each  has  produced  a  progeny  of  subsidiary  powers,  some 
of  which  have  in  their  turn  been  surrounded  by  an  unexpected 
offspring.  Thus  from  the  taxing  and  borrowing  powers  there 
sprang  the  powers  to  charter  a  national  bank  and  exempt  its 
branches  and  its  notes  from  taxation  by  a  State  (a  serious 
restriction  on  State  authority),  to  create  a  system  of  custom- 
houses and  revenue  cutters,  to  establish  a  tariff  for  the  protec- 
tion of  native  industry.  Thus  the  regulation  of  commerce  has 
been  construed  to  include  legislation  regarding  every  kind 
of  transportation  of  goods  and  passengers,  whether  from 
abroad  or  from  one  State  to  another,  regarding  navigation, 
maritime  and  internal  pilotage,  maritime  contracts,  etc.,  to- 
gether with  the  control  of  all  navigable  waters  not  situate 
wholly  within  the  limits  of  one  State,  the  construction  of 
all  public  works  helpful  to  commerce  between  States  or  with 
foreign  countries,  the  power  to  prohibit  immigration,  and 
finally  a  power  to  establish  a  railway  commission  and  control 
all  inter-State  traffic.^  The  war  power  proved  itself  even  more 
elastic.     The  executive  and  the  majority  in  Congress  found 

1  The  case  of  Gibbons  v.  Ogden  supplies  an  interesting  illustration  of  the  way 
in  which  this  doctrine  of  implied  powers  works  itself  out.  The  State  of  New 
York  had,  in  order  to  reward  Fulton  and  Livingston  for  their  services  in  intro- 
ducing steamboats,  passed  a  statute  giving  them  an  exclusive  right  of  navigat- 
ing the  Hudson  river  with  steamers.  A  case  having  arisen  in  which  this 
statute  was  invoked,  it  was  alleged  that  the  statute  was  invalid,  because 
inconsistent  with  an  Act  passed  by  Congress.  The  question  followed,  Was 
Congress  entitled  to  pass  an  Act  dealing  with  the  navigation  of  the  Hudson  ? 
and  it  was  held  that  the  power  to  regulate  commerce  granted  to  Congress  by 
the  Constitution  implied  a  power  to  legislate  for  navigation  on  such  rivers  as 
the  Hudsou,  and  that  Congress  having  exercised  that  power,  the  action  of  the 
States  on  the  subject  was  necessarily  excluded.  By  this  decision  a  vast  field 
of  legislation  was  secured  to  Congress  and  closed  to  the  States. 


382  THE   NATIONAL   GOVERNMENT 


themselves  during  the  War  of  Secession  obliged  to  stretch 
this  power  to  cover  many  acts  trenching  on  the  ordinary  rights 
of  the  States  and  of  individuals,  till  there  ensued  something 
which,  fifty  years  earlier,  would  have  been  deemed  to  approach 
a  suspension  of  constitutional  guarantees  in  favour  of  the  Fed- 
eral government. 

The  courts  have  occasionally  gone  even  further  afield,  and 
have  professed  to  deduce  certain  powers  of  the  legislature  from 
the  sovereignty  inherent  in  the  National  government.  In  its 
last  decision  on  the  legal  tender  question,  a  majority  of  the 
Supreme  court  seems  to  have  placed  upon  this  ground,  though 
with  special  reference  to  the  section  enabling  Congress  to  bor- 
row money,  its  affirmance  of  that  competence  of  Congress  to 
declare  paper  money  a  legal  tender  for  debts,  which  the  earlier 
decision  of  1871  had  referred  to  the  war  power.  This  position 
evoked  a  controversy  of  wide  scope,  for  the  question  what 
sovereignty  involves  belongs  as  much  to  political  as  to  legal 
science,  and  may  be  pushed  to  great  lengths  upon  considera- 
tions with  which  law  proper  has  little  to  do. 

The  above-mentioned  instances  of  development  have  been 
worked  out  by  the  courts  of  law.  But  others  are  due  to  the 
action  of  the  executive,  or  of  the  executive  and  Congress  con- 
jointly. Thus,  in  1803,  President  Jefferson  negotiated  and 
completed  the  purchase  of  Louisiana,  the  whole  vast  posses- 
sipns  of  France  beyond  the  Mississippi.  He  believed  himself 
to  be  exceeding  any  powers  which  the  Constitution  conferred ; 
and  desired  to  have  an  amendment  to  it  passed,  in  order  to 
validate  his  act.  But  Congress  and  the  people  did  not  share 
his  scruples,  and  the  approval  of  the  legislature  was  deemed 
sufficient  ratification  for  a  step  of  transcendent  importance, 
which  no  provision  of  the  Constitution  bore  upon.  In  1807 
and  1808  Congress  laid,  by  two  statutes,  an  embargo  on  all 
shipping  in  United  States  ports,  thereby  practically  destroying 
the  lucrative  carrying  trade  of  the  New  England  States.  Some 
of  these  States  declared  the  Act  unconstitutional,  arguing  that 
a  power  to  regulate  commerce  was  not  a  power  to  annihilate  it, 
and  their  courts  held  it  to  be  void.  Congress,  however,  per- 
sisted for  a  year,  and  the  Act,  on  which  the  Supreme  court 
never  formally  pronounced,  has  been  generally  deemed  within 
the  Constitution,  though  Justice  Story  (who  had  warmly  op- 


CHAP.  XXXIII     INTERPRETATION   OF   CONSTITUTION  383 

posed  it  when  he  sat  in  Congress)  remarks  that  it  went  to  the 
extreme  verge.  More  startling,  and  more  far-reaching  in  their 
consequences,  were  the  assumptions  of  Federal  authority  made 
during  the  War  of  Secession  by  the  executive  and  confirmed, 
some  expressly,  some  tacitly,  by  Congress  and  the  people.^  It 
was  only  a  few  of  these  that  came  before  the  courts,  and  the 
courts,  in  some  instances,  disapproved  them.  But  the  execu- 
tive continued  to  exert  this  extraordinary  authority.  Appeals 
made  to  the  letter  of  the  Constitution  by  the  minority  were 
discredited  by  the  fact  that  they  were  made  by  persons  sym- 
pathizing with  the  Secessionists  who  were  seeking  to  destroy 
it.  So  many  extreme  things  were  done  under  the  pressure  of 
necessity  that  something  less  than  these  extreme  things  came 
to  be  accepted  as  a  reasonable  and  moderate  compromise.- 

The  best  way  to  give  an  adequate  notion  of  the  extent  to 
which  the  outlines  of  the  Constitution  have  been  filled  up-  by 
interpretation  and  construction,  would  be  to  take  some  of  its 
more  important  sections  and  enumerate  the  decisions  upon  them 
and  the  doctrines  established  by  those  decisions.  This  process 
would,  however,  be  irksome  to  any  but  a  legal  reader,  and  the 
legal  reader  may  do  it  more  agreeably  for  himself  by  consult- 
ing one  of  the  annotated  editions  of  the  Constitution.  He 
will  there  find  that  upon  some  provisions  such  as  Art.  i.  §  8 
(powers  of  Congress),  Art.  i.  §  10  (powers  denied  to  the 
States),  Art.  iii.  §  2  (extent  of  judicial  power),  there  has 
sprung  up  a  perfect  forest  of  judicial  constructions,  working 

1  See  Judge  Cooley's  History  of  Michigan,  p.  353.  The  same  eminent 
authority  observes  to  me :  "  The  President  suspended  the  writ  of  habeas  corpus. 
The  courts  held  this  action  unconstitutional  (it  was  subsequently  confirmed  by 
Congress),  but  he  did  not  at  once  deem  it  safe  to  obey  their  judgment.  Military 
commissioners,  with  the  approval  of  the  War  Department  and  the  President, 
condemned  men  to  punishment  for  treason,  but  the  courts  released  them,  hold- 
ing that  the  guaranties  of  liberty  in  the  Constitution  were  as  obligatory  m  war 
as  in  peace,  and  should  be  obeyed  by  all  citizens,  and  all  departments,  and 
officers  of  government  (MilUf/an's  case,  4  Wall.  1).  The  courts  held  closely  to 
the  Constitution,  but  as  happens  in  every  civil  war,  a  great  many  wrongs  were 
done  in  the  exercise  of  the  war  power  for  which  no  redress,  or  none  that  was 
adequate,  could  possibly  be  had."  Inter  arma  silent  Iff/es  must  be  always  to 
some  extent  true,  even  under  a  Constitution  like  that  of  the  United  States. 

2  Such  as  the  suspension  of  the  writ  of  habeas  corpus,  the  emancipation  of 
the  slaves  of  persons  aiding  in  the  rebellion,  the  suspension  of  the  statute  of 
limitations,  the  practical  extinction  of  State  banks  by  increased  taxation  laid 
on  them  under  the  general  taxing  power. 


384  THE   NATIONAL   GOVERNMENT  part  i 

out  the  meaning  and  application  of  the  few  and  apparently 
simple  words  of  the  original  document  into  a  variety  of  unfore- 
seen results.  The  same  thing  has  more  or  less  befallen  nearly 
every  section  of  the  Constitution  and  of  the  fifteen  amend- 
ments. The  process  shows  no  signs  of  stopping ;  nor  can  it, 
for  the  new  conditions  of  economics  and  politics  bring  up  new 
problems  for  solution.  But  the  most  important  work  was  that 
done  during  the  first  half  century,  and  especially  by  Chief- 
Justice  Marshall  during  his  long  tenure  of  the  presidency  of 
the  Supreme  court  (1801-1835).  It  is  scarcely  an  exaggera- 
tion to  call  him,  as  an  eminent  American  jurist  has  done,  a 
second  maker  of  the  Constitution.  I  will  not  borroAv  the 
phrase  which  said  of  Augustus  that  he  found  Rome  of  brick 
and  left  it  of  marble,  because  Marshall's  function  was  not 
to  change  but  to  develop.  The  Constitution  was,  except  of 
course  as  regards  the  political  scheme  of  national  government, 
which  was  already  well  established,  rather  a  ground  plan  than 
a  city.  It  was,  if  I  may  pursue  the  metaphor,  much  what  the 
site  of  Washington  was  at  the  beginning  of  this  century,  a 
symmetrical  ground  plan  for  a  great  city,  but  with  only  some 
tall  edifices  standing  here  and  there  among  fields  and  woods. 
Marshall  left  it  what  Washington  has  now  become,  a  splendid 
and  commodious  capital  within  whose  ample  bounds  there  are 
still  some  vacant  spaces  and  some  mean  dwellings,  but  which, 
built  up  and  beautified  as  it  has  been  by  the  taste  and  wealth 
of  its  rapidly  growing  population,  is  worthy  to  be  the  centre 
of  a  mighty  nation.  Marshall  was,  of  course,  only  one  among 
seven  judges,  but  his  majestic  intellect  and  the  elevation  of  his 
character  gave  him  such  an  ascendency,  that  he  found  himself 
only  once  in  a  minority  on  any  constitutional  question.^  His 
work  of  building  up  and  working  out  the  Constitution  was 
accomplished  not  so  much  by  the  decisions  he  gave  as  by  the 
judgments  in  which  he  expounded  the  principles  of  these 
decisions,  judgments  which  for  their  philosophical  breadth,  the 
luminous  exactness  of  their  reasoning,  and  the  fine  political 
sense  which  pervades  them,  have  never   been  surpassed  and 

1  In  that  one  case  {Ogden  v.  Sanders)  there  was  a  hare  majority  against 
him,  and  professional  opinion  now  approves  the  view  which  he  took.  When 
Marshall  became  Chief-Justice  only  two  decisions  on  constitutional  law  had 
been  pronounced  by  the  court.  Between  that  time  and  his  death  fifty-one 
were  given. 


CHAP.  XXXIII     INTERPRETATION   OF   CONSTITUTION  385 

rarely  equalled  by  the  most  famous  jurists  of  modern  Europe 
or  of  ancient  Rome.  Marshall  did  not  forget  the  duty  of  a 
judge  to  decide  nothing  more  than  the  suit  before  him  requires, 
but  he  was  wont  to  set  forth  the  grounds  of  his  decision  in 
such  a  way  as  to  show  how  they  Avould  fall  to  be  applied  in 
cases  that  had  not  yet  arisen.  He  grasped  with  extraordinary 
force  and  clearness  the  cardinal  idea  that  the  creation  of  a 
national  government  implies  the  grant  of  all  such  subsidiary 
powers  as  are  requisite  to  the  effectuation  of  its  main  powers 
and  purposes,  but  he  developed  and  applied  this  idea  with  so 
much  prudence  and  sobriety,  never  treading  on  purely  political 
ground,  never  indulging  the  temptation  to  theorize,  but  con- 
tent to  follow  out  as  a  lawyer  the  consequences  of  legal  princi- 
ples, that  the  Constitution  seemed  not  so  much  to  rise  under 
his  hands  to  its  full  stature,  as  to  be  gradually  unveiled  by  him 
till  it  stood  revealed  in  the  harmonious  perfection  of  the  form 
which  its  fraraers  had  designed.  That  admirable  flexibility 
and  capacity  for  growth  which  characterize  it  beyond  all  other 
rigid  or  supreme  constitutions,  is  largely  due  to  him,  yet  not 
more  to  his  courage  than  to  his  caution.^ 

We  now  come  to  the  third  question  :  How  is  the  interpreting 
authority  restrained  ?  If  the  American  Constitution  is  capable 
of  being  so  developed  by  this  expansive  interpretation,  what 
security  do  its  written  terms  offer  to  the  people  and  to  the 
States  ?  What  becomes  of  the  special  value  claimed  for  Rigid 
constitutions  that  they  preserve  the  frame  of  government 
unimpaired  in  its  essential  merits,  that  they  restrain  the 
excesses  of  a  transient  majority,  and  (in  Federations)  the 
aggressions  of  a  central  authority? 

The  answer  is  two-fold.  In  the  first  place,  the  interpreting 
authority  is,  in  questions  not  distinctly  political,  different  from 
the  legislature  and  from  the  executive,  amenable  to  neither, 
and  composed  of  lawyers  imbued  with  professional  habits. 
There  is  therefore  a  probability  that  it  will  disagree  with  either 
of  them  when  they  attempt  to  transgress  the  Constitution,  and 
will  decline  to  stretch  the  law  so  as  to  sanction  encroachments 

1  Had  the  Supreme  court  been  ia  those  days  possessed  by  the  same  spirit  of 
strictness  and  literality  which  tJie  Judicial  Committee  of  the  British  Privy 
Council  has  recently  applied  to  the  construction  of  the  British  North  America 
Act  of  1867  (tlie  Act  which  creates  the  Constitution  of  the  Canadian  Federation) , 
the  United  States  Constitution  would  never  have  grown  to  he  what  it  now  is. 
VOL.  I  2  O 


386  THE   NATIONAL   GOVERNMENT 


those  authorities  may  have  attempted.  In  point  of  fact,  there 
have  been  few  cases,  and  those  chiefly  cases  of  urgency  dur- 
ing the  war,  in  which  the  judiciary  has  been  even  accused  of 
lending  itself  to  the  designs  of  the  other  organs  of  government. 
The  period  when  extensive  interpretation  was  most  active 
(1800-1835)  was  also  the  period  when  the  party  opposed  to  a 
strong  central  government  commanded  Congress  and  the  exec- 
utive, and  so  far  from  approving  the  course  the  court  took, 
the  dominant  party  then  often  complained  of  it. 

In  the  second  place,  there  stands  above  and  behind  the  legis- 
lature, the  executive,  and  the  judiciary,  another  power,  that  of 
public  opinion.  The  President,  Congress,  and  the  courts  are 
all,  the  two  former  directly,  the  latter  practically,  amenable  to 
the  people,  and  anxious  to  be  in  harmony  with  the  general 
current  of  its  sentiment.  If  the  people  approve  the  way  in 
which  these  authorities  are  interpreting  and  using  the  Consti- 
tution, they  go  on ;  if  the  people  disapprove,  they  pause,  or  at 
least  slacken  their  pace.  Generally  the  people  have  approved 
of  such  action  by  the  President  or  Congress  as  has  seemed 
justified  by  the  needs  of  the  time,  even  though  it  may  have 
gone  beyond  the  letter  of  the  Constitution :  generally  they 
have  approved  the  conduct  of  the  courts  whose  legal  interpre- 
tation has  upheld  such  legislative  or  executive  action.  Public 
opinion  sanctioned  the  purchase  of  Louisiana,  and  the  still 
bolder  action  of  the  executive  in  the  Secession  War.  It 
approved  the  Missouri  compromise  of  1820,  which  the  Supreme 
court  thirty-seven  years  afterwards  declared  to  have  been  in 
excess  of  the  powers  of  Congress.  But  it  disapproved  the 
Alien  and  Sedition  laws  of  1798,  and  although  these  statutes 
were  never  pronounced  unconstitutional  by  the  courts,  this 
popular  censure  has  prevented  any  similar  legislation  since 
that  time.i  The  people  have,  of  course,  much  less  exact 
notions  of  the  Constitution  than  the  legal  profession  or  the 
courts.  But  while  they  generally  desire  to  see  the  powers  of 
the  government  so  far  expanded  as  to  enable  it  to  meet  the 
exigencies  of  the  moment,  they  are  sufficiently  attached  to  its 
general  doctrines,  they  sufficiently  prize  the  protection  it  affords 
them  against  their  own  impulses,  to  censure  any  interpretation 

1  So  it  disapproved  strongly,  in  the  northern  States,  of  the  judgments 
delivered  by  the  majority  of  the  Supreme  court  in  the  Dred  Scott  case. 


CHAP.  XXXIII     INTERPRETATION   OF   CONSTITUTION  387 

which  palpably  departs  from  the  old  lines.  And  their  censure 
is,  of  course,  still  more  severe  if  the  court  seems  to  be  acting 
at  the  bidding  of  a  party. 

A  singular  result  of  the  importance  of  constitutional  inter- 
pretation in  the  American  government  may  be  here  referred  to. 
It  is  this,  that  the  United  States  legislature  has  been  very 
largely  occupied  in  purely  legal  discussions.  When  it  is  pro- 
posed to  legislate  on  a  subject  which  has  been  heretofore  little 
dealt  with,  the  opponents  of  a  measure  have  two  lines  of  de- 
fence. They  may,  as  Englishmen  would  in  a  like  case,  argue 
that  the  measure  is  inexpedient.  But  they  may  also,  which 
Englishmen  cannot,  argue  that  it  is  unconstitutional,  i.e. 
illegal,  because  transcending  the  powers  of  Congress.  This  is 
a  question  fit  to  be  raised  in  Congress,  not  only  as  regards 
matters  with  which,  as  being  purely  political,  the  courts  of  law 
will  refuse  to  interfere,  but  as  regards  all  other  matters  also, 
because  since  a  decision  on  the  constitutionality  of  a  statute 
can  never  be  obtained  from  the  judges  by  anticipation,  the  leg- 
islature ought  to  consider  whether  they  are  acting  within  their 
competence.  And  it  is  a  question  on  which  a  stronger  case 
can  often  be  mude,  and  made  with  less  exertion,  than  on  the 
issue  whether  the  measure  be  substantially  expedient.  Hence 
it  is  usually  put  in  the  fore-front  of  the  battle,  and  argued 
with  great  vigour  and  acumen  by  leaders  who  are  probably 
more  ingenious  as  lawyers  than  they  are  far-sighted  as  states- 
men. 

A  further  consequence  of  this  habit  is  pointed  out  by  one  of 
the  most  thoughtful  among  American  constitutional  writers. 
Legal  issues  are  apt  to  dwarf  and  obscure  the  more  substan- 
tially important  issues  of  principle  and  policy,  distracting  from 
these  latter  the  attention  of  the  nation  as  well  as  the  skill  of 
congressional  debaters. 

"  The  English  legislature,"  says  Judge  Hare,  "  is  free  to  fol- 
low any  course  that  will  promote  the  welfare  of  the  State,  and 
the  inquiry  is  not,  'Has  Parliament  power  to  pass  the  Act?  ' 
but,  '  Is  it  consistent  with  principle,  and  such  as  the  circum- 
stances demand  ? '  These  are  the  material  points,  and  if  the 
public  mind  is  satisfied  as  to  them  there  is  no  further  contro- 
versy. In  the  United  States,  on  the  other  hand,  the  question 
primarily  is  one  of  power,  and  in  the  refined  and  subtle  dis- 


388  THE   NATIONAL   GOVERNMENT 


cussion  which  ensues,  right  is  too  often  lost  sight  of  or  treated 
as  if  it  were  synonymous  with  might.  It  is  taken  for  granted 
that  Avhat  the  Constitution  permits  it  also  approves,  and  that 
measures  which  are  legal  cannot  be  contrary  to  morals." 

The  interpretation  of  the  Constitution  has  at  times  become 
so  momentous  as  to  furnish  a  basis  for  the  formation  of  politi- 
cal parties ;  and  the  existence  of  parties  divided  upon  such 
questions  has  of  course  stimulated  the  interest  with  which 
points  of  legal  interpretation  have  been  watched  and  can- 
vassed. Soon  after  the  formation  of  the  National  government 
in  1789  two  parties  grew  up,  one  advocating  a  strong  central 
authority,  the  other  championing  the  rights  of  the  States.  Of 
these  parties  the  former  naturally  came  to  insist  on  a  liberal, 
an  expaiisive,  perhaps  a  lax  construction  of  the  words  of  the 
Constitution,  because  the  more  wide  is  the  meaning  placed 
upon  its  grant  of  powers,  so  much  the  wider  are  those  powers 
themselves.  The  latter  party,  on  the  other  hand,  was  acting 
in  protection  both  of  the  States  and  of  the  individual  citizen 
against  the  central  government,  when  it  limited  by  a  strict  and 
narrow  interpretation  of  the  fundamental  instrument  the  pow- 
ers which  that  instrument  conveyed.  The  distinction  which 
began  in  those  early  days  has  never  since  vanished.  There 
has  always  been  a  party  professing  itself  disposed  to  favour 
the  central  government,  and  therefore  a  party  of  broad  construc- 
tion. There  has  always  been  a  party  claiming  that  it  aimed  at 
protecting  the  rights  of  the  States,  and  therefore  a  party  of  strict 
construction.  Some  writers  have  gone  so  far  as  to  deem  these 
different  views  of  interpretation  to  be  the  foundation  of  all  the 
political  parties  that  have  divided  America.  This  view,  how- 
ever, inverts  the  facts.  It  is  not  because  men  have  differed  in 
their  reading  of  the  Constitution  that  they  have  advocated  or 
opposed  an  extension  of  Federal  powers  ;  it  is  their  attitude  on 
this  substantial  issue  that  has  determined  their  attitude  on  the 
verbal  one.  Moreover,  the  two  great  ^  parties  have  several 
times  changed  sides  on  the  very  question  of  interpretation. 
The  purchase  of  Louisiana  and  the  Embargo  acts  Avere  the 
work  of  the  Strict  Constructionists,  while  it  was  the  Loose 
Constructionist  party  which  protested  against  the  latter  meas- 
ure, and  which,  at  the  Hartford  Convention  of  1814,  advanced 
doctrines  of  State  rights  almost  amounting   to   those    subse- 


CHAP,  xxxiii    INTERPRETATION  OP  CONSTITUTION  389 

quently  asserted  by  South  Carolina  in  1832  and  by  the  Seces- 
sionists of  1861.  Parties  in  America,  as  in  most  countries, 
have  followed  their  temporary  interest ;  and  if  that  interest 
happened  to  differ  from  some  traditional  party  doctrine,  they 
have  explained  the  latter  away.  Whenever  there  has  been  a 
serious  party  conflict,  it  has  been  in  reality  a  conflict  over 
some  living  and  practical  issue,  and  only  in  form  a  debate  upon 
canons  of  legal  interpretation.  What  is  remarkable,  though 
natural  enough  in  a  country  governed  by  a  written  instrument, 
is  that  every  controversy  has  got  involved  with  questions  of 
constitutional  construction.  When  it  was  proposed  to  exert 
some  power  of  Congress,  as  for  instance  to  charter  a  national 
bank,  to  grant  money  for  internal  improvements,  to  enact  a 
protective  tariff,  the  opponents  of  these  schemes  could  plausi- 
bly argue,  and  therefore  of  course  did  argue,  that  they  were 
unconstitutional.  So  any  suggested  interference  with  slavery 
in  States  or  Territories  was  immediately  declared  to  violate 
the  State  rights  which  the  Constitution  guaranteed.  Thus 
every  serious  question  came  to  be  fought  as  a  constitutional 
question.  But  as  regards  most  questions,  and  certainly  as 
regards  the  great  majority  of  the  party  combatants,  men  did 
not  attack  or  defend  a  proposal  because  they  held  it  legally 
unsound  or  sound  on  the  true  construction  of  the  Constitution, 
but  alleged  it  to  be  constitutionally  wrong  or  right  because 
they  thought  the  w^elfare  of  the  country,  or  at  least  their  party 
interests,  to  be  involved.  Constitutional  interpretation  was  a 
pretext  rather  than  a  cause,  a  matter  of  form  rather  than  of 
substance. 

The  results  were  both  good  and  evil.  They  were  good  in  so 
far  as  they  made  both  parties  profess  themselves  defenders  of 
the  Constitution,  zealous  only  that  it  should  be  interpreted 
aright;  as  they  familiarized  the  people  with  its  provisions, 
and  made  them  vigilant  critics  of  every  legislative  or  execu- 
tive act  which  could  affect  its  working.  They  were  evil  in 
distracting  public  attention  from  real  problems  to  the  legal 
aspect  of  those  problems,  and  in  cultivating  a  habit  of  casu- 
istry whiX;h  threatened  the  integrity  of  the  Constitution  itself. 

Since  the  Civil  War  there  has  been  much  less  of  this  casu- 
istry because  there  have  been  fewer  occasions  for  it,  the  Broad 
Construction  view  of  the  Constitution  having  practically  pre- 


390 


THE  NATIONAL  GOVERNMENT 


PART    I 


vailed  —  prevailed  so  far  that  the  Supreme  court  now  holds 
that  the  power  of  Congress  to  make  paper  money  legal  tender 
is  incident  to  the  sovereignty  of  the  National  government,  and 
that  a  Democratic  House  of  Eepresentatives  passes  a  bill 
giving  a  Federal  commission  vast  powers  over  all  the  railways 
which  pass  through  more  than  one  State.  There  is  still  a 
party  inclined  to  strict  construction,  but  the  strictness  which 
it  upholds  would  have  been  deemed  lax  by  the  Broad  Con- 
structionists of  thirty  years  ago.  The  interpretation  which 
has  thus  stretched  the  Constitution  to  cover  powers  once  un- 
dreamt of,  may  be  deemed  a  da-ngerous  resource.  But  it  must 
be  remembered  that  even  the  constitutions  we  call  Rigid  must 
make  their  choice  between  being  bent  or  being  broken.  The 
Americans  have  more  than  once  bent  their  Constitution  in 
order  that  they  might  not  be  forced  to  break  it. 


CHAPTEE  XXXIV 

THE   DEVELOPMENT    OF    THE    CONSTITUTION    BY   USAGE 

There  is  yet  anotlier  way  in  wliicli  the  Constitution  has  been 
developed.  This  is  by  laying  down  rules  on  matters  which  are 
within  its  general  scope,  but  have  not  been  dealt  with  by  its 
words,  by  the  creation  of  machinery  which  it  has  not  provided 
for  the  attainment  of  objects  it  contemplates,  or,  to  vary  the 
metaphor,  by  ploughing  and  planting  ground  which,  though 
included  within  the  boundaries  of  the  Constitution,  was  left 
waste  by  those  who  drew  up  the  original  instrument. 

Although  the  Constitution  is  curiously  minute  upon  some 
comparatively  small  points,  such  as  the  qualifications  of  members 
of  Congress  and  the  official  record  of  their  votes,  it  passes  over 
in  silence  many  branches  of  political  action,  many  details  essen- 
tial to  every  government.  Some  may  have  been  forgotten,  but 
some  were  purposely  omitted,  because  the  Convention  could 
not  agree  upon  them,  or  because  they  would  have  provoked 
opposition  in  the  ratifying  conventions,  or  because  they  were 
thought  unsuited  to  a  document  which  it  was  desirable  to  draft 
concisely  and  to  preserve  as  far  as  possible  unaltered.  This 
was  wise  and  indeed  necessary,  but  it  threw  a  great  responsi- 
bility upon  those  who  had  to  work  the  government  which  the 
Constitution  created.  They  found  nothing  within  the  four 
corners  of  the  instrument  to  guide  them  on  points  whose  grav- 
ity was  perceived  as  soon  as  they  had  to  be  settled  in  practice. 
Many  of  such  points  could  not  be  dealt  with  by  interpreta- 
tion or  construction,  however  liberally  extensive  it  might  be, 
because  there  was  nothing  in  the  words  of  the  Constitution 
from  which  such  construction  could  start,  and  because  they 
were  in  some  instances  matters  which,  though  important,  could 
not  be  based  upon  principle,  but  must  be  settled  by  an  arbitrary 
determination. 

391 


392  THE  NATIONAL  GOVERNMENT  part  i 

Their  settlement,  which  began  with  the  first  Congress,  has 
been  effected  in  two  ways,  by  Congressional  legislation  and  by 
usage. 

Congress  was  empowered  by  the  Constitution  to  pass  statutes 
on  certain  prescribed  topics.  On  many  other  topics  not  spe- 
cially named,  but  within  its  general  powers,  statutes  were  evi- 
dently needed.  For  instance,  the  whole  subject  of  Federal 
taxation,  direct  and  indirect,  the  establishment  of  Federal 
courts,  inferior  to  the  Supreme  court,  and  the  assignment  of 
particular  kinds  and  degrees  of  jurisdiction  to  each  class  of 
courts,  the  organization  of  the  civil,  military,  and  naval  services 
of  the  country,  the  administration  of  Indian  affairs  and  of  the 
Territories,  the  rules  to  be  observed  in  the  elections  of  Presi- 
dents and  senators,  these  and  many  other  matters  of  high  im- 
port are  regulated  by  statutes,  statutes  which  Congress  can  of 
course  change  but  which,  in  their  main  features,  have  been  not 
greatly  changed  since  their  first  enactment.  Although  such 
statutes  cannot  be  called  parts  of  the  Constitution  in  the  same 
sense  as  the  interpretations  judicially  placed  upon  it,  for  these 
latter  have  (subject  to  the  possibility  of  their  reversal)  become 
practically  incorporated  with  its  original  text,  still  they  have 
given  to  its  working  a  character  and  direction  which  must  be 
borne  in  mind  in  discussing  it,  and  which  have,  in  some  in- 
stances, produced  results  opposed  to  the  ideas  of  its  framers.  To 
take  a  recent  instance,  the  passing  of  the  Inter-State  Com- 
merce Act,  which  regulates  all  the  greater  railways  over  the 
whole  United  States,  is  an  assertion  of  Federal  authority  over 
numerous  and  poAverful  corporations  chartered  by  and  serving 
the  various  States,  which  gives  a  new  aspect  and  significance 
to  the  clause  in  the  Constitution  empowering  Congress  to  regu- 
late commerce.  Legal  interpretation  held  that  clause  to  be 
sufficiently  wide  to  enable  Congress  to  legislate  on  inter-State 
railways ;  but  when  Congress  actually  exerted  its  power  in  en- 
acting this  statute  a  further  step,  and  a  long  one,  was  taken 
towards  bringing  the  organs  of  transportation  under  national 
control.^     Legislation,  therefore,  though  it  cannot  in  strictness 

1  The  recognition  tliat  the  Constitution  empowers  Congress  to  deal  with  a 
given  subject  does  not  imply  that  every  detail  of  the  Act  dealing  therewith  is 
above  objection.  Although  j)rima  facie  Congress,  when  competent  to  legislate 
on  a  subject,  is  free  to  choose  its  means,  still  it  remains  open  to  any  one  to 
challenge  the  constitutionality  of  any  particular  provisions  in  a  statute. 


CHAP.  XXXIV  DEVELOPMENT   BY   USAGE  393 

enlarge  the  frontiers  fixed  by  the  Constitution,  can  give  to  cer- 
tain provinces  lying  within  those  frontiers  far  greater  impor- 
tance than  they  formerly  possessed,  and  by  so  doing,  can 
substantially  change  the  character  of  the  government.  It 
cannot  engender  a  new  power,  but  it  can  turn  an  old  one  in  a 
new  direction,  and  call  a  dormant  one  into  momentous  activity. 

Kext  as  to  usage.  Custom,  which  is  a  law-j)roducing  agency 
in  every  department,  is  specially  busy  in  matters  which  per- 
tain to  the  practical  conduct  of  government.  Understandings 
and  conventions  are  in  modern  practice  no  less  essential  to 
the  smooth  working  of  the  English  Constitution,  than  are  the 
principles  enunciated  in  the  Bill  of  Rights.  Now  understand- 
ings are  merely  long-established  usages,  sanctioned  by  no  stat- 
ute, often  too  vague  to  admit  of  precise  statement,^  yet  in 
some  instances  deemed  so  binding  that  a  breach  of  them 
would  damage  the  character  of  a  statesman  or  a  ministry  just 
as  much  as  the  transgression  of  a  statute.  In  the  United 
States  there  are  fewer  such  understandings  than  in  England, 
because  under  a  Constitution  draAvn  out  in  one  fundamental 
document  everybody  is  more  apt  to  stand  upon  his  strict  legal 
rights,  and  the  spirit  of  institutions  departs  less  widely  from 
their  formal  character.  IsTevertheless  some  of  those  features 
of  American  government  to  which  its  character  is  chiefly  due, 
and  which  recur  most  frequently  in  its  daily  working,  rest 
neither  upon  the  Constitution  nor  upon  any  statute,  but  upon 
usage  alone.     Here  are  some  instances. 

The  presidential  electors  have  by  usage  and  by  usage  only 
lost  the  right  the  Constitution  gave  them  of  exercising  their 
discretion  in  the  choice  of  a  chief  magistrate. 

The  President  is  not  re-elected  more  than  once,  though  the 
Constitution  places  no  restriction  whatever  on  re-eligibility.^ 

The  President  uses  his  veto  more  freely  than  he  did  at  first, 
and  for  a  wider  range  of  purposes. 

1  For  instance,  it  is  impossible  to  state  precisely  the  practical  (as  distin- 
guished from  the  legal)  rights  of  the  House  of  Lords  to  reject  bills  passed  by 
the  House  of  Commons,  or  the  duty  of  the  Crown  when  a  Cabinet  makes  some 
very  unusual  request ;  although  it  is  admitted  that  as  a  rule  the  Lords  ought 
to  yield  to  the  Commons  and  the  Crown  to  be  guided  by  the  advice  of  its 
ministers. 

2  See  ante,  Chap.  V.  The  Federalist  (No.  Ixviii.)  says  that  the  President 
will  be  and  ought  to  be  re-elected  as  often  as  the  people  think  him  worthy  of 
their  confidence. 


394  THE   NATIONAL   GOVERNMENT  part  i 

The  Senate  now  never  exercises  its  undoubted  power  of  re- 
fusing to  confirm  the  appointments  made  by  the  President  to 
cabinet  offices. 

The  President  is  permitted  to  remove,  without  asking  the 
consent  of  the  Senate,  officials  to  whose  appointment  the  con- 
sent of  the  Senate  is  necessary.  Tliis  was  for  a  time  regulated 
by  statute,  but  the  statute  having  been  repealed  the  old  usage 
has  revived.     (See  Chapter  VI.) 

Both  the  House  and  the  Senate  conduct  their  legislation  by 
means  of  standing  committees.  This  vital  peculiarity  of  the 
American  system  of  government  has  no  firmer  basis  than  the 
standing  orders  of  each  House,  which  can  be  repealed  at  any 
moment,  but  have  been  maintained  for  many  years. 

The  Speaker  of  the  House  is  by  a  similar  practice  entrusted 
with  the  profoundly  important  power  of  nominating  all  the 
House  committees. 

The  chairmen  of  the  chief  committees  of  both  Houses,  which 
control  the  great  departments  of  State  (e.g.  foreign  affairs, 
navy,  justice,  finance),  have  practically  become  an  additional 
set  of  ministers  for  those  departments. 

The  custom  of  going  into  caucus,  by  which  the  parties  in  each 
of  the  two  Houses  of  Congress  determine  their  action,  and  the 
obligation  on  individual  members  to  obey  the  decision  of  the 
caucus  meeting,  are  mere  habits  or  understandings,  without  legal 
sanction.  So  is  the  right  claimed  by  the  senators  from  a  State 
to  control  the  Federal  patronage  of  that  State.  So  is  the  usage 
that  appropriation  bills  shall  be  presented  to  the  House. 

The  rule  that  a  member  of  Congress  must  be  chosen  from 
the  district,  as  well  as  from  the  State,  in  which  he  resides, 
rests  on  no  Federal  enactment;  indeed,  neither  Congress  nor 
any  State  legislature  would  be  entitled  thus  to  narrow  the 
liberty  of  choice  which  the  words  of  the  Constitution  imply. 

Jackson  introduced,  and  succeeding  Presidents  continued  the 
practice  of  dismissing  Federal  officials  belonging  to  the  oppo- 
site party,  and  appointing  none  but  adherents  of  their  own 
party  to  the  vacant  places.  This  is  the  so-called  Spoils 
System,  which,  having  been  applied  also  to  State  and  municipal 
offices,  has  been  made  the  corner-stone  of  "practical  politics" 
in  America.  The  Constitution  is  nowise  answerable  for  it 
and  legislation  only  partially. 


CHAP.  XXXIV  DEVELOPMENT  BY  USAGE  395 

Neither  in  Euglish  law  nor  in  American  is  there  anything 
regarding  the  re-eligibility  of  a  member  of  the  popular  cham- 
ber ;  nor  can  it  be  said  that  usage  has  established  in  either 
country  any  broad  general  rule  on  the  subject.  But  whereas 
the  English  tendency  has  been  to  re-elect  a  member  unless 
there  is  some  positive  reason  for  getting  rid  of  him,  in  many 
parts  of  America  men  are  disposed  the  other  way,  and  refuse 
to  re-elect  him  just  because  he  has  had  his  turn  already.  Any 
one  can  understand  what  a  difference  this  makes  in  the  charac- 
ter of  the  chamber. 

We  see,  then,  that  several  salient  features  of  the  present 
American  government,  such  as  the  popular  election  of  the 
President,  the  influence  of  senators  and  congressmen  over 
patronage,  the  immense  power  of  the  Speaker,  the  Spoils  sys- 
tem, are  due  to  usages  which  have  sprung  up  round  the  Con- 
stitution and  profoundly  affected  its  working,  but  which  are 
not  parts  of  the  Constitution,  nor  necessarily  attributable  to 
any  specific  provision  which  it  contains.  The  most  remark- 
able instance  of  all,  the  choice  of  presidential  candidates 
by  the  great  parties  assembled  in  their  national  conventions, 
will  be  fvilly  considered  in  a  later  chapter. 

One  of  the  changes  which  the  last  seventy  years  have 
brought  about  is  so  remarkable  as  to  deserve  special  mention. 
The  Constitution  contains  no  provisions  regarding  the  electoral 
franchise  in  congressional  elections  save  the  three  following:  — 

That  the  franchise  shall  in  every  State  be  the  same  as  that 
by  which  the  members  of  the  "  most  numerous  branch  of  the 
State  legislature"  are  chosen  (Art.  i.  §  2). 

That  when  any  male  citizens  over  twenty-one  years  of  age 
are  excluded  by  any  State  from  the  franchise  (except  for  crime) 
the  basis  of  representation  in  Congress  of  that  State  shall  be 
proportionately  reduced  (Am.  xiv.,  1868). 

That  "the  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  on  account  of  race,  colour,  or 
previous  condition  of  servitude"  (Am.  xv.,  1870). 

Subject  to  these  conditions  every  State  may  regulate  the 
electoral  franchise  as  it  pleases. 

In  the  first  days  of  the  Constitution  the  suffrage  was  in 
nearly  all  States  limited  by  various  conditions  {e.g.  prop- 
erty qualification,  length  of  residence,  etc.)   which  excluded, 


396  THE   NATIONAL   GOVERNMENT  part  i 

or  might  have  excluded,  though  in  some  States  the  proportion 
of  very  poor  people  was  small,  a  considerable  number  of  the 
free  inhabitants.  At  present  the  suffrage  is  in  every  State 
practically  universal.  It  had  become  so  in  the  Free  States^ 
even  before  the  war.  Here  is  an  advance  towards  pure  democ- 
racy effected  without  the  action  of  the  national  legislature,  but 
solely  by  the  legislation  of  the  several  States,  a  legislation 
Avhich,  as  it  may  be  changed  at  any  moment,  is,  so  far  as  the 
national  government  is  concerned,  mere  custom.  And  of  this 
great  step,  modifying  profoundly  the  colour  and  character  of 
the  government,  there  is  no  trace  in  the  words  of  the  Con- 
stitution other  than  the  provisions  of  the  fourteenth  and  fif- 
teenth amendments  introduced  for  the  benefit  of  the  liberated 
negroes. 

It  is  natural,  it  is  indeed  inevitable,  that  there  should  be  in 
every  country  such  a  parasitic  growth  of  usages  and  conven- 
tions round  the  solid  legal  framework  of  government.  But 
must  not  the  result  of  such  a  growth  be  different  where  a 
rigid  constitution  exists  from  what  it  is  in  countries  where  the 
constitution  is  flexible  ?  In  England  usages  of  the  kind  de- 
scribed become  inwoven  with  the  law  of  the  country  as  settled 
by  statutes  and  decisions,  and  modify  that  law.  Cases  come 
before  a  court  in  which  a  usage  is  recognized  and  thereby 
obtains  a  sort  of  legal  sanction.  Statutes  are  passed  in  which 
an  existing  usage  is  taken  for  granted,  and  which  therefore 
harmonize  with  it.  Thus  the  alwa5''s  changing  Constitution 
becomes  interpenetrated  by  custom.  Custom  is  in  fact  the  first 
stage  through  which  a  rule  passes  before  it  is  embodied  in 
binding  law.  But  in  America,  where  the  fundamental  law 
cannot  readily  be,  and  is  in  fact  very  rarely  altered,  may  we 
not  expect  a  conflict,  or  at  least  a  want  of  harmony,  between 
law  and  custom,  due  to  the  constant  growth  of  the  one  and  the 
immutability  of  the  other  ? 

In  examining  this  point  one  must  distinguish  between  sub- 
jects on  which  the  Constitution  is  silent  and  subjects  on  which 
it  speaks.  As  regards  the  former  there  is  little  difficulty. 
Usage  and  legislation  may  expand  the  Constitution  in  what 
way  they  please,  subject  only  to  the  control  of  public  opinion. 

1  Save  that  in  many  of  them  persons  of  colour  were  placed  at  a  disadvan- 
tage. 


CHAP.  XXXIV  DEVELOPMENT   BY   USAGE  397 

The  courts  of  law  will  not  interfere,  because  no  provision  of 
the  Constitution  is  violated ;  and  even  where  it  may  be 
thought  that  an  act  of  Congress  or  of  the  executive  is  opposed 
to  the  spirit  of  the  Constitution,  still  if  it  falls  within  the 
range  of  the  discretion  which  these  authorities  have  received, 
it  will  not  be  questioned  by  the  judges.^ 

If,  on  the  other  hand,  either  congressional  legislation  or 
usage  begins  to  trench  on  ground  which  the  Constitution  ex- 
pressly covers,  the  question  at  once  arises  whether  such  legis- 
lation is  valid,  or  whether  an  act  done  in  conformity  with 
such  usage  is  legal.  Questions  of  this  kind  do  not  always 
come  before  the  courts,  and  if  they  do  not,  the  presumption 
is  in  favour  of  whatever  act  has  been  done  by  Congress  or 
by  any  legally  constituted  authority.  When,  however,  such  a 
question  is  susceptible  of  judicial  determination  and  is  actually 
brought  before  a  tribunal,  the  tribunal  is  disposed  rather  to 
support  than  to  treat  as  mdl  the  act  done.  Applying  that 
expansive  interpretation  which  has  prevailed  since  the  war  as 
it  prevailed  in  the  days  of  Chief-Justice  Marshall,  the  Supreme 
court  is  apt  to  find  grounds  for  moving  in  the  direction  which 
it  perceives  public  opinion  to  have  taken,  and  for  putting  on 
the  words  of  the  Constitution  a  sense  which  legalizes  what 
Congress  has  enacted  or  custom  approved.  When  this  takes 
place  things  proceed  smoothly.  The  change  Avhich  circum- 
stances call  for  is  made  gently,  and  is  controlled,  perhaps 
modified,  in  its  operation. 

But  sometimes  the  courts  feel  bound  to  declare  some  statute, 

1  "  It  is  an  axiom  in  our  jurisprudence  that  an  Act  of  Congress  is  not  to  be 
pronounced  unconstitutional  unless  the  defect  of  power  to  pass  it  is  so  clear  as 
to  admit  of  no  doubt.  Every  doubt  is  to  be  resolved  in  favour  of  the  validity 
of  the  law."  —  Swayne,  J.,  in  United  States  v.  Rhodes,  1  Abb.  U.  S.  49. 

An  interesting  illustration  is  supplied  by  a  very  recent  case  which  arose  in 
the  efforts  made  to  check  the  evils  arising  from  the  lotteries  established  in 
Louisiana.  Congress,  being  unable  to  strike  at  the  lottery  in  Louisiana  itself, 
passed  a  statute  forbidding  the  post-office  to  carry  newspapers  containing 
lottery  advertisements  (since  it  was  by  these  that  mischief  was  done  over  the 
rest  of  the  Union) ,  and  imposing  a  penalty  on  any  one  posting  lottery  adver- 
tisements in  breach  of  the  statute.  A  newspaper  proprietor  arrested  for  such 
breach  carried  his  case  to  the  Supreme  court,  alleging  the  statute  to  be 
unconstitutional  because  inconsistent  with  the  first  amendment  to  the  Consti- 
tution. The  court  however  unanimously  held  (189-2)  that  that  amendment 
did  not  apply,  and  supported  the  right  of  Congress  to  use  tlie  control  of  the 
post-office  as  a  means  of  dealing  with  the  harm  done  by  lotteries;  and  public 
opinion  heartily  welcomed  this  decision. 


398  THE   NATIONAL   GOVERNMENT  i-akt  i 

or  executive  act  done  in  pursuance  of  usage,  contrary  to  the 
Constitution.  What  happens  ?  In  theory  the  judicial  deter- 
mination is  conchisive,  and  ought  to  check  any  further  progress 
in  the  path  which  has  been  pronounced  unconstitutionaL  But 
whether  this  result  follows  will  in  practice  depend  on  the  cir- 
cumstances of  the  moment.  If  the  case  is  not  urgent,  if  there 
is  no  strong  popular  impulse  behind  Congress  or  the  President, 
no  paramount  need  for  the  usage  which  had  sprung  up  and 
is  now  disapproved,  the  decision  of  the  courts  will  be  acqui- 
esced in ;  and  whatever  tendency  towards  change  exists  will 
seek  some  other  channel  where  no  constitutional  obstacle  bars 
its  course.  But  if  the  needs  of  the  time  be  pressing,  courts 
and  Constitution  may  have  to  give  way.  Sains  reipuhlicae  lex 
suprema.  Above  that  supreme  written  law  stands  the  safety 
of  the  commonwealth,  which  will  be  secured,  if  possible  in 
conformity  with  the  Constitution ;  but  if  that  be  not  possi- 
ble, then  l3y  evading,  or  even  by  overriding  the  Constitution.^ 
This  is  what  happened  in  the  Civil  War,  when  men  said  that 
they  would  break  the  Constitution  in  order  to  preserve  it. 

Attempts  to  disobey  the  Constitution  have  been  rare,  because 
the  fear  of  clashing  with  it  has  arrested  many  mischievous 
proposals  in  their  earlier  stages,  while  the  influence  of  public 
opinion  has  averted  possible  collisions  by  leading  the  courts  to 
lend  their  ultimate  sanction  to  measures  or  usages  which,  had 
they  come  under  review  at  their  first  appearance,  might  have 
been  pronounced  unconstitutional.^  That  collisions  have  been 
rare  is  good  evidence  of  the  political  wisdom  of  American 
statesmen  and  lawyers.    But  politicians  in  other  countries  will 

1  In  a  remarkable  letter  written  to  Mr.  Hodges  (4th  April  18(54),  President 
Lincoln  said  :  "  My  oath  to  preserve  the  Constitution  imposed  on  me  the  duty  of 
preserving  by  every  indispensable  means  that  government,  that  nation,  of  which 
the  Constitution  was  the  organic  law.  Was  it  possil)le  to  lose  the  nation  and 
yet  preserve  the  Constitution?  By  general  law  life  and  limb  must  be  pro- 
tected, yet  often  a  limb  must  be  amputated  to  save  a  life,  but  a  life  is  uever 
wisely  given  to  save  a  limb.  I  felt  that  measures,  otherwise  unconstitutional, 
might  become  lawful  by  liecoming  indispensable  to  the  preservation  of  the 
Constitution  thi-ough  the  preservation  of  the  nation.  Right  or  wrong  I  as- 
sumed this  ground,  and  now  avow  it.  I  could  not  feel  that  to  the  best  of  my 
ability  I  had  even  tried  to  preserve  the  Constitution,  if,  to  save  slavery,  or  any 
minor  matter,  I  should  permit  the  wreck  of  government,  country,  and  Consti- 
tution altogether." 

2  Such  as  the  expenditure  of  vast  sums  on  "internal  imj^rovements "  and 
the  assumption  of  wide  powers  over  internal  communications. 


CHAP.  XXXIV  DEVELOPMENT   BY   USAGE  399 

err  if  they  suppose  that  the  existence  of  a  rigid  or  supreme 
constitution  is  enough  to  avert  collisions,  or  to  secure  the  vic- 
tory of  the  fundamental  instrument.  A  rigid  constitution 
resembles,  not  some  cliff  of  Norwegian  gneiss  which  bears  for 
centuries  unchanged  the  lash  of  Atlantic  billows,  but  rather  a 
sea-wall,  such  as  guards  the  seaside  promenade  of  an  English 
town,  whose  smooth  surface  resists  the  ordinary  waves  and 
currents  of  the  Channel  but  may  be  breached  or  washed  away 
by  some  tremendous  tempest.  The  American  Constitution  has 
stood  unbroken,  because  America  has  never  seen,  as  some 
European  countries  have  seen,  angry  multitudes  or  military 
tyrants  bent  on  destroying  the  institutions  which  barred  the 
course  of  their  passions  or  ambition.  And  it  has  also  stood 
because  it  has  submitted  to  a  process  of  constant,  though 
sometimes  scarcely  perceptible,  change  which  has  adapted  it 
to  the  conditions  of  a  new  age. 

The  solemn  determination  of  a  people  enacting  a  fundamental 
law  by  which  they  and  their  descendants  shall  be  governed 
cannot  prevent  that  law,  however  great  the  reverence  they 
continue  to  profess  for  it,  from  being  worn  away  in  one  part, 
enlarged  in  another,  modified  in  a  third,  by  the  ceaseless  action 
of  influences  playing  upon  the  individuals  who  compose  the 
people.  Thus  the  American  Constitution  has  necessarily 
changed  as  the  nation  has  changed,  has  changed  in  the  spirit 
with  which  men  regard  it,  and  therefore  in  its  own  spirit.  To 
use  the  words  of  the  eminent  constitutional  lawyer  whom  I 
have  more  than  once  quoted:  "We  may  think,"  says  Jiidge 
Cooley,  "  that  we  have  the  Constitution  all  before  us  ;  but  for 
practical  purposes  the  Constitution  is  that  which  the  govern- 
ment, in  its  several  departments,  and  the  people  in  the  per- 
formance of  their  duties  as  citizens,  recognize  ajid  respect  as 
such  ;  and  nothing  else  is.  .  .  .  Cervantes  says  :  Every  one  is 
the  son  of  his  own  works.  This  is  more  emphatically  true  of 
an  instrument  of  government  than  it  can  possibly  be  of  a  nat- 
ural person.  What  it  takes  to  itself,  though  at  first  unwar- 
rantable, helps  to  make  it  over  into  a  new  instrument  of 
government,  and  it  represents  at  last  the  acts  done  under  it." 


CHAPTER   XXXV 

THE    RESULTS    OF    CONSTITUTIONAL    DEVELOPMENT 

We  have  seen  that  the  American  Constitution  has  changed, 
is  changing,  and  by  the  law  of  its  existence  must  continue  to 
change,  in  its  substance  and  practical  working  even  when  its 
words  remain  the  same.  ''Time  and  habit,"  said  Washington, 
"  are  at  least  as  necessary  to  fix  the  true  character  of  govern- 
ments as  of  other  human  institu^tions  : "  ^  and  while  habit  fixes 
some  things,  time  remoulds  others. 

It  remains  to  ask  what  has  been  the  general  result  of  the 
changes  it  has  suffered,  and  what  light  an  examination  of  its 
history,  in  this  respect,  throws  upon  the  probable  future  of  the 
instrument  and  on  the  worth  of  Rigid  or  Supreme  constitu- 
tions in  general. 

The  Constitution  was  avowedly  created  as  an  instrument  of 
checks  and  balances.  Each  branch  of  the  National  government 
was  to  restrain  the  others,  and  mamtain  the  equipoise  of  the 
whole.  The  legislature  was  to  balance  the  executive,  and  the 
judiciary  both.  The  two  houses  of  the  legislature  were  to 
balance  one  another.  The  National  government,  taking  all  its 
branches  together,  was  balanced  against  the  State  governments. 
As  this  equilibrium  was  placed  under  the  protection  of  a  docu- 
ment, unchangeable  save  by  the  people  themselves,  no  one  of 
the  branches  of  the  National  government  has  been  able  to 
absorb  or  override  the  others,  as  the  House  of  Commons  and 
the  Cabinet,  itself  a  child  of  the  House  of  Commons,  have  in 
England  overridden  and  subjected  the  Crown  and  the  House 
of  Lords.  Each  branch  maintains  its  independence,  and  can, 
within  certain  limits,  defy  the  others. 

But  there  is  among  political  bodies  and  offices  (i.e.  the  per- 
sons who  from  time  to  time  fill  the  same  office)  of  necessity  a 

1  Farewell  Address,  17th  September  1796. 


CHAP.  XXXV  RESULTS   OF    DEVELOPMENT  401 

cpnstant  strife,  a  struggle  for  existence  similar  to  that  which 
Mr.  Darwin  has  shown  to  exist  among  plants  and  animals ; 
and  as  in  the  case  of  plants  and  animals  so  also  in  the  politi- 
cal sphere  this  struggle  stimulates  each  body  or  office  to  exert 
its  utmost  force  for  its  own  preservation,  and  to  develop  its 
aptitudes  in  any  direction  wherein  development  is  possible. 
Each  branch  of  the  American  government  has  striven  to  ex- 
tend its  range  and  its  powers  ;  each  has  advanced  in  certain 
directions,  but  in  others  has  been  restrained  by  the  equal  or 
stronger  pressure  of  other  branches.  I  shall  attempt  to  state 
the  chief  differences  perceptible  between  the  ideas  which  men 
entertained  regarding  the  various  bodies  and  offices  of  the 
government  when  they  first  entered  life,  and  the  aspect  they 
now  wear  to  the  nation. 

The  President  has  developed  a  capacity  for  becoming,  in 
moments  of  national  peril,  something  like  a  Roman  dictator. 
He  is  in  quiet  times  no  stronger  than  he  was  at  first,  possibly 
weaker.  Congress  has  in  some  respects  encroached  on  him,  yet 
his  office  has  shown  that  it  may,  in  the  hands  of  a  trusted 
leader  and  at  the  call  of  a  sudden  necessity,  rise  to  a  tremen- 
dous height. 

The  ministers  of  the  President  have  not  become  more  im- 
portant either  singly  or  collectively  as  a  cabinet.  Cut  of£  from 
the  legislature  on  one  side,  and  from  the  people  on  the  other, 
they  have  been  a  mere  appendage  to  the  President. 

The  Senate  has  come  to  press  heavilj-  on  the  executive,  and 
at  the  same  time  has  developed  legislative  functions  which, 
though  contemplated  in  the  Constitution,  were  comparatively 
rndimentary  in  the  older  days.  It  has,  in  the  judgment  of 
American  publicists,  grown  relatively  stronger  than  it  then 
was. 

The  Vice-President  of  the  United  States  has  become  even 
more  insignificant  than  the  Constitution  seemed  to  make 
him. 

On  the  other  hand,  the  Speaker  of  the  House  of  Represen- 
tatives, whom  the  Constitution  mentions  only  once,  and  on 
whom  it  bestows  no  powers,  has  now  secured  one  of  the  leading 
parts  in  the  piece,  and  can  affect  the  course  of  legislation  more 
than  any  other  single  person. 

An  oligarchy  of  chairmen  of  the  leading  committees   has 

VOL.  I  2D 


402  THE   NATIONAL   GOVERNMENT 


sprung  up  in  the  House  of  Representatives  as  a  consequence  of 
tlie  increasing  demands  on  its  time  and  of  the  working  of  the 
committee  system. 

The  Judiciary  was  deemed  to  be  making  large  strides  during 
the  first  forty  years,  because  it  established  its  claim  to  powers 
which,  though  doubtless  really  granted,  had  been  but  faintly 
apprehended  in  1789.  After  1830  the  development  of  those 
powers  advanced  more  slowly.  But  the  position  which  the 
Supreme  court  has  taken  in  the  scheme  of  government,  if  it  be 
not  greater  than  the  framers  of  the  Constitution  would  have 
wished,  is  yet  greater  than  they  foresaw. 

Although  some  of  these  changes  are  considerable,  they  are 
far  smaller  than  those  which  England  has  seen  pass  over  her 
Government  since  1789.  So  far,  tlierefore,  the  rigid  Constitu- 
tion has  maintained  a  sort  of  equilibrium  between  the  various 
powers,  whereas  that  which  was  then  supposed  to  exist  in 
England  between  the  king,  the  peers,  the  House  of  Commons, 
and  the  people  (i.e.  the  electors)  has  vanished  irrecoverably. 

In  the  other  struggle  that  has  gone  on  in  America,  that  be- 
tween the  National  government  and  the  States,  the  results 
have  been  still  more  considerable,  though  the  process  of  change 
has  sometimes  been  interrupted.  During  the  first  few  decades 
after  1789  the  States,  in  spite  of  a  steady  and  often  angry  re- 
sistance, sometimes  backed  by  threats  of  secession,  found  them- 
selves more  and  more  entangled  in  the  network  of  Federal 
powers  which  sometimes  Congress,  sometimes  the  President, 
sometimes  the  Judiciary,  as  the  expounder  of  the  Constitution, 
flung  over  them.  Provisions  of  the  Constitution  whose  bear- 
ing had  been  inadequately  realized  in  the  first  instance  were 
put  in  force  against  a  State,  and  when  once  put  in  force  became 
precedents  for  the  future.  It  is  instructive  to  observe  that 
this  was  done  by  both  of  the  great  national  parties,  by 
those  who  defended  State  rights  and  preached  State  sover- 
eignty as  well  as  by  the  advocates  of  a  strong  central  govern- 
ment. Eor  the  former,  when  they  saw  the  opportunity  of 
effecting  by  means  of  the  central  legislative  or  executive 
power  an  object  of  immediate  party  importance,  did  not  hesi- 
tate to  put  in  force  that  central  power,  forgetful  or  heedless  of 
the  example  they  were  setting. 

It  is  for  this  reason  that  the  process  by  which  the  National 


CHAP.  XXXV  RESULTS   OF   DEVELOPMENT  403 

government  has  groAvn  may  be  called  a  natural  one.  A  politi- 
cal force  has,  like  a  heated  gas,  a  natural  tendency  to  expan- 
sion, a  tendency  which  works  even  apart  from  the  knowledge 
and  intentions  of  those  through  whom  it  works.  In  the  proc- 
ess of  expansion  such  a  force  may  meet,  and  may  be  checked 
or  driven  back  by  a  stronger  force.  The  expansive  force  of 
the  National  government  proved  ultimately  stronger  than  the 
force  of  the  States,  so  the  centralizing  tendency  prevailed. 
And  it  prevailed  not  so  much  by  the  conscious  purpose  of  the 
party  disposed  to  favour  it,  as  through  the  inherent  elements 
of  strength  which  it  possessed,  and  the  favouring  conditions 
amid  which  it  acted,  elements  and  conditions  largely  irrespec- 
tive of  either  political  party,  and  operative  under  the  suprem- 
acy of  the  one  as  well  as  of  the  other.  Now  and  then  the 
centralizing  process  was  checked.  Georgia  defied  the  Supreme 
court  in  1830-32,  and  was  not  made  to  bend  because  the  execu- 
tive sided  with  her.  South  Carolina  defied  Congress  and  the 
President  in  1832,  and  the  issue  was  settled  by  a  compromise. 
Acute  foreign  observers  then  and  often  during  the  period  that 
followed  predicted  the  dissolution  of  the  Union.  For  some 
years  before  th.e  outbreak  of  the  Civil  War  the  tie  of  obedience 
to  the  National  government  was  palpably  loosened  over  a 
large  part  of  the  country.  But  during  and  after  the  war  the 
former  tendency  resumed  its  action,  swifter  and  more  potent 
than  before. 

A  critic  may  object  to  the  view  here  presented  by  remarking 
that  the  struggle  between  the  National  government  and  the 
States  has  not,  as  in  the  case  of  the  struggles  between  differ- 
ent branches  of  the  National  government,  proceeded  merely  by 
the  natural  development  of  the  Constitution,  but  has  been 
accelerated  by  specific  changes  in  the  Constitvition,  viz.  those 
made  by  the  three  latest  amendments. 

This  is  true.  But  the  dominance  of  the  centralizing  tenden- 
cies is  not  wholly  or  even  mainly  due  to  those  amendments.  It 
had  begun  before  them.  It  would  have  come  about,  though 
less  completely,  without  them.  It  has  been  due  not  only  to 
these  amendments  bu.t  also  — 

To  the  extensive  interpretation  by  the  judiciary  of  the 
powers  which  the  Constitution  vests  in  the  National 
government. 


404  THE    NATIONAL   GOVERNMENT  part  i 

To  the  passing  by  Congress  of  statutes  on  topics  not  exclu- 
sively reserved  to  the  States,  statutes  which  have  sensibly 
narrowed  the  field  of  State  action. 
To  exertions  of  executive  power  which,  having  been  approved 
by  the  people,  and  not  condemned  by  the  courts,  have 
passed  into  precedents. 
These  have  been  the  modes  in  which  the  centralizing  ten- 
dency has  shown  itself  and  prevailed.     What  have  been  the 
underlying  causes  ? 

They  belong  to  history.  They  are  partly  economical,  partly 
moral.  Steam  and  electricity  have  knit  the  various  parts  of 
the  country  closely  together,  have  made  each  State  and  group 
of  States  more  dependent  on  its  neighbours,  have  added  to  the 
matters  in  which  the  whole  country  benefits  by  joint  action 
and  uniform  legislation.  The  power  of  the  National  govern- 
ment to  stimulate  or  depress  commerce  and  industries  by  tariff 
legislation  has  given  it  a  wide  control  over  the  material  pros- 
perity of  part  of  the  Union,  till  "  the  people,  and  especially 
the  trading  and  manufacturing  classes,  came  to  look  more  and 
more  to  the  national  capital  for  what  enlists  their  interests, 
and  less  and  less  to  the  capital  of  their  own  State.  ...  It  is 
the  nation  and  not  the  State  that  is  present  to  the  imagination 
of  the  citizens  as  sovereign,  even  in  the  States  of  Jefferson  and 
Calhoun.  .  .  .  The  Constitution  as  it  is,  and  the  Union  as  it 
was,  can  no  longer  be  the  party  watchword.  There  is  a  new 
Union,  with  new  grand  features,  but  with  new  engrafted 
evils."  ^  There  has  grown  up  a  pride  in  the  national  flag,  and 
in  the  national  government  as  representing  national  unity.  In 
the  jSTorth  there  is  gratitude  to  that  government  as  the  power 
that  saved  the  Union  in  the  Civil  War ;  in  the  South  a  sense 
of  the  strength  which  Congress  and  the  President  then  exerted ; 
in  both  a  recollection  of  the  immense  scope  which  the  war 
powers  took  and  might  take  again.  All  over  the  country  there 
is  a  great  army  of  Federal  office-holders  who  look  to  Washing- 
ton as  the  centre  of  tlieir  hopes  and  fears.  As  the  modes  in 
and  by  which  these  and  other  similar  causes  can  work  are 
evidently  not  exhausted,  it  is  clear  that  the  development  of  the 
Constitution  as  between  the  nation  and  the  States  has  not  yet 
stopped,  and  present  appearances  suggest  that  the  centralizing 
tendency  will  continue  to  prevail. 

1  Cooley,  History  of  Michigan. 


CHAP.  XXXV  RESULTS   OF  DEVELOPMENT  405 

How  does  the  inquiry  we  have  been  conducting  effect  the 
judgment  to  be  passed  upon  the  worth  of  rigid  constitutions, 
i.e.  of  written  instruments  of  government  emanating  from  an 
authority  superior  to  that  of  the  ordinary  legislature  ?  The 
question  is  a  grave  one  for  European  countries,  which  seem  to 
be  passing  from  the  older  or  Flexible  to  the  newer  or  Rigid 
type  of  constitutions. 

A  European  reader  who  has  followed  the  facts  stated  in  the 
last  foregoing  chapters  may  be  inclined  to  dismiss  the  question 
summarily.  ''Rigid  Constitutions,"  he  will  say,  "are  on  your 
own  showing  a  delusion  and  a  sham.  The  American  Constitu- 
tion has  been  changed,  is  being  changed,  will  continue  to  be 
changed,  by  interpretation  and  usage.  It  is  not  what  it  was 
even  thirty  years  ago ;  who  can  tell  what  it  will  be  thirty  years 
hence  ?  If  its  transformations  are  less  swift  than  those  of  the 
English  Constitution,  this  is  only  because  England  has  not 
even  yet  so  completely  democratized  herself  as  America  had 
done  half  a  century  ago,  and  therefore  there  has  been  more 
room  for  change  in  England.  If  the  existence  of  the  funda- 
mental Constitution  did  not  prevent  violent  stretches  of  execu- 
tive power  during  the  war,  and  of  legislative  power  after  as 
well  as  during  the  war,  will  not  its  paper  guarantees  be  trodden 
under  foot  more  recklessly  the  next  time  a  crisis  arrives  ?  It 
was  intended  to  protect  not  only  the  States  against  the  central 
government,  not  only  each  branch  of  the  government  against 
the  other  branches,  l3ut  the  people  against  themselves,  that  is 
to  say,  the  people  as  a  whole  against  the  impulses  of  a  tran- 
sient majority.  What  becomes  of  this  protection  when  you 
admit  that  even  the  Supreme  court  is  influenced  by  public 
opinion,  which  is  only  another  name  for  the  reigning  sentiment 
of  the  moment  ?  If  every  one  of  the  checks  and  safeguards 
contained  in  the  document  may  be  overset,  if  all  taken  together 
may  be  overset,  where  are  the  boasted  guarantees  of  the  fun- 
damental laws  ?  Evidently  it  stands  only  because  it  is  not  at 
present  assailed.  It  is  like  the  walls  of  Jericho,  tall  and 
stately,  but  ready  to  fall  at  the  blast  of  the  trumpet.  It  is 
worse  than  a  delusion :  it  is  a  snare ;  for  it  lulls  the  nation  into 
a  fancied  security,  seeming  to  promise  a  stability  for  the  insti- 
tutions of  government,  and  a  respect  for  the  rights  of  the  indi- 
vidual, which  are  in  fact  baseless.     A  flexible  constitution  like 


400  THE   NATIONAL   GOVERNMENT  part  i 

that  of  England  is  really  safer,  because  it  practises  no  similar 
deceit,  but  by  warning  good  citizens  that  the  welfare  of  the 
commonwealth  depends  always  on  themselves  and  themselves 
only,  stimulates  them  to  constant  efforts  for  the  maintenance 
of  their  own  rights  and  the  deepest  interests  of  society." 

This  statement  of  the  case  errs  as  much  in  one  direction  by 
undervaluing,  as  common  opinion  errs  by  overvaluing,  the  sta- 
bility of  rigid  constitutions.  They  do  not  perform  all  that  the 
solemnity  of  their  wording  promises.  But  they  are  not  there- 
fore useless. 

To  expect  any  form  of  words,  however  weightily  conceived, 
with  whatever  sanctions  enacted,  permanently  to  restrain  the 
passions  and  interests  of  men  is  to  expect  the  impossible. 
Beyond  a  certain  point,  you  cannot  protect  the  people  against 
themselves  any  more  than  you  can,  to  iTse  a  familiar  American 
expression,  lift  yourself  from  the  ground  by  your  own  boot- 
straps. Laws  sanctioned  by  the  overwhelming  physical  power 
of  a  despot,  laws  sanctioned  by  supernatural  terrors  whose 
reality  no  one  doubted,  have  failed  to  restrain  those  passions 
in  ages  of  slavery  and  superstition.  The  world  is  not  so  much 
advanced  that  in  this  age  laws,  even  the  best  and  most  vener- 
able laws,  will  of  themselves  command  obedience.  Constitu- 
tions which  in  quiet  times  change  gradually,  peacefully,  almost 
imperceptibly,  must  in  times  of  revolution  be  changed  more 
boldly,  some  provisions  being  sacrificed  for  the  sake  of  the 
rest,  as  mariners  throw  overboard  part  of  the  cargo  in  a  storm 
in  order  to  save  the  other  part  with  the  ship  herself.  To  cling 
to  the  letter  of  a  Constitution  when  the  welfare  of  the  country 
for  whose  sake  the  Constitution  exists  is  at  stake,  would  be  to 
seek  to  preserve  life  at  the  cost  of  all  that  makes  life  worth 
having  — propter  vitam  viveyidi  perdere  causas. 

Nevertheless  the  rigid  Constitution  of  the  United  States  has 
rendered,  and  renders  now,  inestimable  services.  It  opposes 
obstacles  to  rash  and  hasty  change.  It  secures  time  for  deliber- 
ation. It  forces  the  people  to  think  seriously  before  they  alter 
it  or  pardon  a  transgression  of  it.  It  makes  legislatures  and 
statesmen  slow  to  overpass  their  legal  powers,  slow  even  to 
propose  measures  which  the  Constitution  seems  to  disapprove. 
It  tends  to  render  the  inevitable  process  of  modification  gradual 
and  tentative,  the  result  of  admitted  and  growing  necessities 


CHAP.  XXXV  RESULTS   OF   DEVELOPMENT  407 

rather  than  of  restless  impatience.  It  altogether  prevents  some 
changes  which  a  temporary  majority  may  clamour  for,  but 
which  will  have  ceased  to  be  demanded  before  the  barriers 
interposed  by  the  Constitution  have  been  overcome. 

It  does  still  more  than  this.  It  forms  the  mind  and  temper  of 
the  people.  It  trains  them  to  habits  of  legality.  It  strengthens 
their  conservative  instincts,  their  sense  of  the  value  of  stability 
and  permanence  in  political  arrangements.^  It  makes  them  feel 
that  to  comprehend  their  supreme  instrument  of  government 
is  a  personal  duty,  incumbent  on  each  one  of  them.  It  famil- 
iarizes them  with,  it  attaches  them  by  ties  of  pride  and  rever- 
ence to,  those  fundamental  truths  on  which  the  Constitution  is 
based. 

These  are  enormous  services  to  render  to  any  free  country, 
but  above  all  to  one  which,  more  than  any  other,  is  governed 
not  by  the  men  of  rank  or  wealth  or  special  wisdom,  but  by 
public  opinion,  that  is  to  say,  by  the  ideas  and  feelings  of  the 
people  at  large.  In  no  country  were  swift  political  changes  so 
much  to  be  apprehended,  because  nowhere  has  material  growth 
been  so  rapid  and  immigration  so  enormous.  In  none  might 
the  political  character  of  the  people  have  seemed  more  likely 
to  be  bold  and  prone  to  innovation,  because  their  national 
existence  began  with  a  revolution,  which  even  now  lies  only  a 
century  behind.  That  none  has  ripened  into  a  more  prudently 
conservative  temper  may  be  largely  ascribed  to  the  influence 
of  the  famous  instrument  of  1789,  which,  enacted  by  and  for  a 
new  republic,  summed  up  so  much  of  what  was  best  in  the 
laws  and  customs  of  an  ancient  monarchy. 

1  An  illustration  of  what  I  mean  is  afforded  by  the  influence  upon  Roman 
legal  history  of  the  enactment  at  a  comparatively  early  period  of  the  Laws  of 
the  Twelve  Tables,  which,  summing  up  the  customary  law  of  the  community 
in  a  concise  and  impressive  form,  fostered  a  conservative  temper  in  the  nation, 
and  caused  legislative  changes,  when  after  some  generations  these  became 
necessarily  frequent,  to  be  made  in  a  cautious  and  tentative  way. 


PART    II 

THE   STATE   GOVERNMENTS 


CHAPTER  XXXVI 

NATUKE  OF  THE  AMERICAN  STATE 

From  the  study  of  the  National  Government,  we  may  go  on 
to  examine  that  of  the  several  States  which  made  up  the 
Union.  This  is  the  part  of  the  American  political  system 
which  has  received  least  attention  both  from  foreign  and  from 
native  writers.  Finding  in  the  Federal  president,  cabinet, 
and  Congress  a  government  superficially  resembling  those  of 
their  own  countries,  and  seeing  the  Federal  authority  alone 
active  in  international  relations,  Europeans  have  forgotten  and 
practically  ignored  the  State  Governments  to  which  their  own 
experience  supplies  few  parallels,  and  on  whose  workings  the 
intelligence  published  on  their  side  of  the  ocean  seldom  throws 
light.  Even  the  European  traveller  who  makes  the  six  days'  run 
across  the  American  continent,  from  New  York  via  Philadelphia 
and  Chicago  to  San  Francisco,  though  he  passes  in  his  journey 
of  3000  miles  over  the  territories  of  eleven  self-governing  com- 
monwealths, hardly  notices  the  fact.  He  uses  one  coinage 
and  one  post-office ;  he  is  stopped  by  no  custom-houses  ;  he 
sees  no  officials  in  a  State  livery ;  he  thinks  no  more  of  the 
difference  of  jurisdictions  than  the  passenger  from  London  to 
Liverpool  does  of  the  counties  traversed  by  the  line  of  the 
North- Western  Railway.  So,  too,  our  best  informed  English 
writers  on  the  science  of  politics,  while  discussing  copiously 
the  relation  of  the  American  States  to  the  central  authority, 
have  failed  to  draw  on  the  fund  of  instruction  which  lies  in 
the  study  of  the  State  Governments  themselves.  Mill  in  his 
Representative  Government  scarcely  refers  to  them.  Mr.  Free- 
man in  his  learned  essays.  Sir  H.  Maine  in  his  ingenious  book 
on  Popular  Government,  pass  by  phenomena  which  would  have 
admirably  illustrated  some  of  their  reasonings. 

American  publicists,  on  the  other  hand,  have  been  too  much 
absorbed  in  the  study  of  the  Federal  system  to  bestow  much 


412  THE  STATE   GOVERNMENTS  pakt  n 

thought  on  the  State  governments.  The  latter  seem  to  them 
the  most  simple  and  obvious  things  in  the  world,  while  the 
former,  Avhich  has  been  the  battle-ground  of  their  political 
parties  for  a  century',  excites  the  keenest  interest,  and  is  indeed 
regarded  as  a  sort  of  mystery,  on  which  all  the  resources  of 
their  metaphysical  subtlety  and  legal  knowledge  may  well  be 
expended.  Thus  while  the  dogmas  of  State  sovereignty  and 
State  rights,  made  practical  by  the  great  struggle  over  slavery, 
have  been  discussed  with  extraordinary  zeal  and  acumen  by 
three  generations  of  men,  the  character,  power,  and  working  of 
the  States  as  separate  self-governing  bodies  have  received 
little  attention  or  illustration.  Yet  they  are  full  of  interest; 
and  he  who  would  understand  the  changes  that  have  passed 
on  the  American  democracy  will  find  far  more  instruction  in 
a  study  of  the  State  governments  than  of  the  Federal  Consti- 
tution. The  materials  for  this  study  are  unfortunately,  at 
least  to  a  European,  either  inaccessible  or  unmanageable. 
They  consist  of  constitutions,  statutes,  the  records  of  the 
debates  and  proceedings  of  constitutional  conventions  and 
legislatures,  the  reports  of  officials  and  commissioners,  to- 
gether with  that  continuous  transcript  and  picture  of  current 
public  opinion  which  the  files  of  newspapers  supply.  Of 
these  sources  only  one,  the  constitutions,  is  practically  avail- 
able to  a  person  writing  on  this  side  the  Atlantic.  To  be 
able  to  use  the  rest  one  must  go  to  the  State  and  devote  one's 
self  there  to  these  original  authorities,  correcting  them,  where 
possible,  by  the  recollections  of  living  men.  It  might  have 
been  expected  that  in  most  of  the  States,  or  at  least  of  the 
older  States,  persons  would  have  been  found  to  write  politi- 
cal, and  not  merely  antiquarian  or  genealogical,  State  histo- 
ries, describing  the  political  career  of  their  respective  commu- 
nities, and  discussing  the  questions  on  which  political  contests 
have  turned.  But  this  has  been  done  in  comparatively  few 
instances,  so  that  the  European  inquirer  finds  a  scanty  meas- 
ure of  the  assistance  which  he  would  naturally  have  expected 
from  previous  labourers  in  this  field.^     I  call  it  a  field :  it  is 

1  Since  these  lines  were  written,  such  a  series  of  State  histories  has  been 
begim  onder  the  title  of  American  Commonwealths.  Of  the  volumes  that  have 
already  appeared  some  possess  high  merit ;  but  they  do  not  always  bring  the 
narrative  down  to  those  very  recent  times  which  are  most  instructive  to  the 
student  of  existing  institutions. 


CHAP.  XXXVI  NATURE   OF   THE   STATE  413 

rather  a  primeval  forest,  where  the  vegetation  is  rank,  and 
through  wliich  scarcely  a  trail  has  yet  been  cnt.  The  new 
historical  school  wliich  is  growing  up  at  tlie  leading  American 
universities,  and  has  already  done  excellent  work  on  the 
earlier  history  of  the  Eastern  States,  will  doubtless  ulti- 
mately grapple  with  this  task ;  *  in  the  meantime,  the  difficul- 
ties I  have  stated  must  be  my  excuse  for  treating  tliis  branch 
of  my  subject  with  a  brevity  out  of  proportion  to  its  real  in- 
terest and  importance.  It  is  better  to  endeavour  to  bring  into 
relief  a  few  leading  features,  little  understood  in  Europe, 
than  to  attempt  a  detailed  account  wliicli  would  run  to  inor- 
dinate length. 

Tlie  American  State  is  a  peculiar  organism,  unlike  anything 
in  modern  Europe,  or  in  the  ancient  world.  The  only  paraHel 
is  to  be  found  in  the  cantons  of  Switzerland,  the  Switzerland 
of  our  own  day,  for  until  1815,  if  one  ought  not  rather  to  say 
until  1848,  Switzerland  was  not  so  much  a  nation  or  a  state  as 
a  league  of  neighbour  commonwealths.  But  Europe  so  per- 
sistently ignores  the  history  of  Switzerland,  that  most  instruc- 
tive patent  museum  of  politics,  apparently  only  because  she  is 
a  small  country,  and  because  people  go  there  to  see  lakes  and 
to  climb  mountains,  that  I  should  perplex  instead  of  enlighten- 
ing the  reader  by  attempting  to  illustrate  American  from  Swiss 
phenomena. 

Let  me  attempt  to  sketch  the  American  States  as  separate 
political  entities,  forgetting  for  the  moment  that  they  are  also 
parts  of  a  Federation. 

There  are  forty-four  States  in  the  American  Union,  varying 
in  size  from  Texas,  with  an  area  of  265,780  square  miles,  to 
Rhode  Island,  with  an  area  of  1250  square  miles;  and  in  popu- 
lation from  New  York,  with  5,997,853  inhal)itants,  to  Nevada, 
with  45,761.  That  is  to  say,  the  largest  State  is  much  larger 
than  either  France  or  the  Germanic  Empire ;  the  most  populous 
much  more  populous  than  Sweden,  or  Portugal,  or  Denmark, 
while  the  smallest  is  smaller  thnn  Warwickshire  or  Corsica, 
and  the  least  populous  less  populous  tlian  tlie  parish  of  Wands- 
worth in  the   suburl)s  of   London    (16,717),   or  tlu>  town  of 

1  Since  the  al)ove  waH  written,  in  1887,  many  valiialile  treatises  ami  mono- 
graphs on  these  constitutional  anrl  liistorical  topics  havcappearod,  and  several 
journals  or  serial  publications  liave  been  established  dealing  witli  tlieiu. 


414  THE   STATE   GOVEKNMENTS  part  ii 

Warrington  in  Lancashire  (52,742).  Considering  not  only 
these  differences  of  size,  but  the  differences  in  the  density  of 
population  (Avhich  in  Nevada  is  .4  and  in  Wyoming  .6  to  the 
square  mile,  Avhile  in  Ehode  Island  it  is  276  and  in  Massa- 
chusetts 268  to  the  square  mile)  ;  in  its  character  (in  South 
Carolina  the  blacks  are  692,503  against  458,454  whites,  in  Mis- 
sissippi 747,720  against  539,703  whites)  ;  in  its  birthplace  (in 
North  Carolina  the  foreign-born  persons  are  less  than  -^^  of 
the  population,  in  California  more  than  i)  ;  in  the  occupations 
of  the  people,  in  the  amount  of  accumulated  wealth,  in  the 
proportion  of  educated  persons  to  the  rest  of  the  community, 
—  it  is  plain  that  immense  differences  might  be  looked  for 
between  the  aspects  of  politics  and  conduct  of  government  in 
one  State  and  in  another. 

Be  it  also  remembered  that  the  older  colonies  had  different 
historical  origins.  Virginia  and  North  Carolina  were  unlike 
Massachusetts  and  Connecticut ;  New  York,  Pennsylvania,  and 
Maryland  different  from  both  ;  while  in  recent  times  the  stream 
of  European  immigration  has  filled  some  States  with  Irishmen, 
others  with  Germans,  others  with  Scandinavians,  and  has  left 
most  of  the  Southern  States  wholly  untouched. 

Nevertheless,  the  form  of  government  is  in  its  main  outlines, 
and  to  a  large  extent  even  in  its  actual  working,  the  same  in  all 
these  forty-four  republics,  and  the  differences,  instructive  as 
they  are,  relate  to  points  of  secondary  consequence. 

The  States  fall  naturally  into  five  groups  :  — 

The  New  England  States  —  Massachusetts,  Connecticut, 
Rhode  Island,  New  Hampshire,  Vermont,  Maine. 

The  Middle  States  —  New  York,  New  Jersey,  Pennsylvania, 
Delaware,^  Maryland,  Ohio,  Indiana.- 

The  Southern,  or  old  Slave  States  —  Virginia,  West  Vir- 
ginia (separated  from  Virginia  during  the  war),  North 
Carolina,  South  Carolina,  Georgia,  Alabama,  Florida, 
Kentucky,  Tennessee,  Mississippi,  Louisiana,  Arkansas, 
Missouri,  Texas. 

1  Delaware  and  Maryland  were  Slave  States,  but  did  not  secede,  and  are  in 
some  respects  to  be  classed  rather  with  the  Middle  than  with  the  Southern 
group,  as  indeed  are  W.  Virginia  and  Missouri,  perhaps  even  Tennessee  and 
Kentucky. 

2  Ohio  and  Indiana  are  becoming  rather  Middle  than  Western,  but  many 
people  would  still  class  them  among  Western  States. 


CHAP.  XXXVI  NATURE   OF   THE   STATE  415 

Tlie  North-Western  States  —  Michigan,  Illinois,  "Wisconsin, 
Minnesota,  Iowa,  Nebraska,  Kansas,  Colorado,  IST.  Da- 
kota, S.  Dakota,  Wyoming,  Montana,  Idaho. 

The  Pacific  States  —  California,  Nevada,  Oregon,  Washing- 
ton. 

Each  of  these  groups  has  something  distinctive  in  the  char- 
acter of  its  inhabitants,  which  is  reflected,  though  more  faintly 
now  than  formerly,  in  the  character  of  its  government  and 
politics. 

New  England  is  the  old  home  of  Puritanism,  the  traces 
whereof,  though  waning  under  the  influence  of  Irish  and 
French  Canadian  immigration,  are  by  no  means  yet  extinct. 
The  Southern  States  will  long  retain  the  imprint  of  slaverj^,  not 
merely  in  the  presence  of  a  host  of  negroes,  but  in  the  degra- 
dation of  the  poor  white  population,  and  in  certain  attributes, 
laudable  as  well  as  regrettable,  of  the  ruling  class.  The 
North-West  is  the  land  of  hopefulness,  and  consequently  of 
bold  experiments  in  legislation :  its  rural  inhabitants  have  the 
honesty  and  narrow-mindedness  of  agriculturists.  The  Pacific 
West,  or  rather  California  and  Nevada,  for  Oregon  and  Wash- 
ington belong  in  character  to  the  Upper  Mississippi  or  North- 
western group,  tinges  the  energy  and  sanguine  good  nature  of 
the  Westerns  with  a  speculative  recklessness  natural  to  mining 
communities,  where  great  fortunes  have  rapidly  grown  and  van- 
ished, and  into  which  elements  have  been  suddenly  swept  to- 
gether from  eyerj  part  of  the  world,  as  a  Eocky  Mountain 
rainstorm  fills  the  bottom  of  a  valley  with  sand  and  pebbles 
from  all  the  surrounding  heights. 

As  the  dissimilarity  of  population  and  of  external  conditions 
seems  to  make  for  a  diversity  of  constitutional  and  political 
arrangements  between  the  States,  so  also  does  the  large 
measure  of  legal  independence  which  each  of  tlieni  enjoys 
under  the  Federal  Constitution.  No  State  can,  as  a  common- 
wealth, politically  deal  with  or  act  upon  any  other  State.  No 
diplomatic  relations  can  exist  nor  treaties  be  made  between 
States,  no  coercion  can  be  exercised  by  one  upon  another. 
And  although  the  government  of  the  Union  can  act  on  a  State, 
it  rarely  does  act,  and  then  only  in  certain  strictly  limited 
directions,  which  do  not  touch  the  inner  political  life  of  the 
commonwealth. 


416  THE   STATE   GOVERNMENTS  part  ii 

Let  us  pass  on  to  consider  the  circumstances  which  work  for 
uniformity  among  the  States,  and  work  more  powerfully  as 
time  goes  on. 

He  who  looks  at  a  map  of  the  Union  will  be  struck  by  the 
fact  that  so  many  of  the  boundary  lines  of  the  States  are 
straight  lines.  Those  lines  tell  the  same  tale  as  the  geometri- 
cal plans  of  cities  like  St.  Petersburg  or  Washington,  where 
every  street  runs  at  the  same  angle  to  every  other.  The 
States  are  not  natural  growths.  Their  boundaries  are  for  the 
most  part  not  natural  boundaries  fixed  by  mountain  ranges, 
nor  even  historical  boundaries  due  to  a  series  of  events,  but 
purely  artificial  boundaries,  determined  by  an  authority  which 
carved  the  national  territory  into  strips  of  convenient  size,  as 
a  building  company  lays  out  its  suburban  lots.  Of  the  States 
subsequent  to  the  original  thirteen,  California  is  the  only  one 
with  a  genuine  natural  boundary,  finding  it  in  the  chain  of  the 
Sierra  Nevada  on  the  east  and  the  Pacific  ocean  on  the  west. 
Ko  one  of  these  later  States  can  be  regarded  as  a  naturally  de- 
veloped political  organism.  They  are  trees  planted  by  the 
forester,  not  self-sown  with  the  help  of  the  seed-scattering 
wind.  This  absence  of  physical  lines  of  demarcation  has 
tended  and  must  tend  to  prevent  the  growth  of  local  distinc- 
tions. Nature  herself  seems  to  have  designed  the  Mississippi 
basin,  as  she  has  designed  the  unbroken  levels  of  Russia,  to  be 
the  dwelling-place  of  one  people. 

Each  State  makes  its  own  Constitution ;  that  is,  the  people 
agree  on  their  form  of  government  for  themselves,  with  no  in- 
terference from  the  other  States  or  from  the  Union.  This  form 
is  subject  to  one  condition  only :  it  must  be  republican.^  But 
in  each  State  the  people  who  make  the  constitution  have  lately 
come  from  other  States,  where  they  have  lived  under  and 
worked  constitutions  which  are  to  their  eyes  the  natural  and 
almost  necessary  model  for  their  new  State  to  follow ;  and  in 
the  absence  of  an  inventive  spirit  among  the  citizens,  it  was 
the  obvious  course  for  the  newer  States  to  copy  the  organi- 
zations of  the  older  States,  especially  as  these  agreed  with  cer- 

1  The  case  of  Kansas  immediately  before  the  War  of  Secession,  and  the  cases 
of  the  rebel  States,  which  were  not  readmitted  after  the  war  till  they  had 
accepted  the  constitutional  amendments  forbidding  slavery  and  protecting  the 
freedmen  are  quite  exceptional.. 


CHAP.  XXXVI  NATURE   OF   THE    STATE  417 

tain  familiar  features  of  the  Federal  Constitution.  Hence  the 
outlines,  and  even  the  phrases  of  the  elder  constitutions  reap- 
pear in  those  of  the  more  recently  formed  States.  The  prece- 
dents set  by  Virginia,  for  instance,  had  much  influence  on 
Tennessee,  Alabama,  Mississippi,  and  Florida,  when  they  were 
engaged  in  making  or  amending  their  constitutions  during  the 
early  part  of  this  century. 

Nowhere  is  population  in  such  constant  movement  as  in 
America.  In  some  of  the  newer  States  only  one-fourth  or  one- 
fifth  of  the  inhabitants  are  natives  of  the  United  States. 
Many  of  the  townsfolk,  not  a  few  even  of  the  farmers,  have 
been  till  lately  citizens  of  some  other  State,  and  will,  perhaps, 
soon  move  on  farther  west.  These  Western  States  are  like  a 
chain  of  lakes  through  which  there  flows  a  stream  which  min- 
gles the  waters  of  the  higher  with  those  of  the  lower.  In  such 
a  constant  flux  of  population  local  peculiarities  are  not  readily 
developed,  or  if  they  have  grown  up  when  the  district  was  still 
isolated,  they  disappear  as  the  country  becomes  filled.  Each 
State  takes  from  its  neighbours  and  gives  to  its  neighbours,  so 
that  the  process  of  assimilation  is  always  going  on  over  the 
whole  wide  area. 

Still  more  important  is  the  influence  of  railway  communica- 
tion, of  newspapers,  of  the  telegraph.  A  Greek  city  like 
Samos  or  Mitylene,  holding  her  own  island,  preserved  a  dis- 
tinctive character  in  spite  of  commercial  intercourse  and  the 
sway  of  Athens.  A  Swiss  canton  like  Uri  or  Appenzell,  en- 
trenched behind  its  mountain  ramparts,  remains,  even  now 
under  the  strengthened  central  government  of  the  Swiss  na- 
tion, unlike  its  neighbours  of  the  lower  country.  But  an 
American  State  traversed  by  great  trunk  lines  of  railway,  and 
depending  on  the  markets  of  the  Atlantic  cities  and  of  Europe 
for  the  sale  of  its  grain,  cattle,  bacon,  and  minerals,  is  attached 
by  a  hundred  always  tightening  ties  to  other  States,  and 
touched  by  their  weal  or  woe  as  nearly  as  by  what  befalls 
within  its  own  limits.  The  leading  newspapers  are  read  over 
a  vast  area.  The  inhabitants  of  each  State  know  every  morn- 
ing the  events  of  yesterday  over  the  whole  Union. 

Finally  the  political  parties  are  the  same  in  all  the  States. 
The  tenets  (if  any)  of  each  party  are  (with  some  slight  excep- 
tions) the  same  everywhere,  their   methods  the  same,   their 

VOL.  I  2  E 


418  THE   STATE   GOVERNMENTS  part  ii 

leaders  the  same,  although  of  course  a  prominent  man  enjoys 
especial  influence  in  his  own  State.  Hence,  State  politics  are 
largely  swayed  by  forces  and  motives  external  to  the  particu- 
lar State,  and  common  to  the  whole  country,  or  two  great  sec- 
tions of  it;  and  the  growth  of  local  parties,  the  emergence 
of  local  issues  and  development  of  local  political  schemes,  are 
correspondingly  restrained. 

These  considerations  explain  why  the  States,  notwithstand- 
ing the  original  diversities  between  some  of  them,  and  the 
wide  scope  for  political  divergence  which  they  all  enjoy  under 
the  Federal  Constitution,  are  so  much  less  dissimilar  and  less 
peculiar  than  might  have  been  expected.  European  statesmen 
have  of  late  years  been  accustomed  to  think  of  federalism  and 
local  autonomy  as  convenient  methods  either  for  recognizing 
and  giving  free  scope  to  the  sentiment  of  nationality  which 
may  exist  in  any  part  of  an  empire,  or  for  meeting  the  need 
for  local  institutions  and  distinct  legislation  which  may  arise 
from  differences  between  such  a  part  and  the  rest  of  the  em- 
pire. It  is  one  or  other  or  both  of  these  reasons  that  have 
moved  statesmen  in  such  cases  as  those  of  Finland  in  her  rela- 
tions to  Kussia,  Hungary  in  her  relations  to  German  Austria, 
Iceland  in  her  relations  to  Denmark,  Bulgaria  in  her  relations 
to  the  Turkish  Sultan,  Ireland  in  her  relations  to  Great  Britain. 
But  the  final  causes,  so  to  speak,  of  the  recognition  of  the 
States  of  the  American  Union  as  autonomous  commonwealths, 
have  been  different.  Their  self-government  is  not  the  conse- 
quence of  differences  which  can  be  made  harmless  to  the  whole 
body  politic  only  by  being  allowed  free  course.  It  has  been 
due  primarily  to  the  historical  fact  that  they  existed  as  com- 
monwealths before  the  Union  came  into  being ;  secondarily,  to 
the  belief  that  localized  government  is  the  best  guarantee  for 
civic  freedom,  and  to  a  sense  of  the  difficulty  of  administering 
a  vast  territory  and  population  from  one  centre  and  by  one 
government. 

I  return  to  indicate  the  points  in  wdiich  the  legal  indepen- 
dence and  right  of  self-government  of  the  several  States  ap- 
pears.    Each  of  the  forty-four  has  its  own  — 

Constitution  (whereof  more  anon). 

Executive,  consisting  of  a  governor,  and  various  other  of- 
ficials. 


CHAP.  XXXVI  NATURE   OF   THE   STATE  419 

Legislature  of  two  Houses. 

System  of  local  government  in  counties,  cities,  townships, 
and  school  distrii'ts. 

System  of  State  and  local  taxation. 

Debts,  which  it  may  repudiate  at  its  own  pleasure. 

Body  of  private  law,  including  the  whole  law  of  real  and 
personal  property,  of  contracts,  of  torts,  and  of  family 
relations. 

System  of  procedure,  civil  and  criminal. 

Court,  from  which  no  appeal  lies  (except  in  cases  touching 
Federal  legislation  or  the  Federal  constitution)  to  any 
Federal  court. 

Citizenship,  which  may  admit  persons  {e.g.  recent  immi- 
grants) to  be  citizens  at  times,  or  on  conditions,  wholly 
different  from  those  prescribed  by  other  States. 

Three  points  deserve  to  be  noted  as  illustrating  what  these 
attributes  include. 

I.  A  man  gains  active  citizenship  of  the  United  States  {i.e. 
a  share  in  the  government  of  the  Union)  only  by  becoming 
a  citizen  of  some  particular  State.  Being  such  citizen,  he  is 
forthwith  entitled  to  the  national  franchise.  That  is  to  say, 
voting  power  in  the  State  carries  voting  power  in  Federal 
elections,  and  however  lax  a  State  may  be  in  its  grant  of  such 
power,  e.g.  to  foreigners  just  landed  or  to  persons  convicted 
of  crime,  these  State  voters  will  have  the  right  of  voting  in 
congressional  and  presidential  elections.^  The  only  restriction 
on  the  States  in  this  matter  is  that  of  the  fourteenth  and 
fifteenth  Constitutional  amendments,  which  have  already  been 
discussed.  They  were  intended  to  secure  equal  treatment  to 
the  negroes,  and  incidentally  they  declare  the  protection  given 

1  Congress  has  power  to  pass  a  uniform  rule  of  naturalization  (Const.  Art. 
i.  §8). 

Under  the  present  naturalization  laws  a  foreigner  must  have  resided  in  the 
United  States  for  five  years,  and  for  one  year  in  the  State  or  Territory  where 
he  seeks  admission  to  United  States  citizensliip,  and  must  declare  two  years 
before  he  is  admitted  that  lie  renounces  allegiance  to  any  foreign  prince  or 
state.  Naturalization  makes  him  a  citizen  not  only  of  the  United  States  but  of 
the  State  or  Territory  where  he  is  admitted,  but  does  not  necessarily  confer  the 
electoral  franchise,  for  that  depends  on  State  laws. 

In  more  than  a  third  of  tlie  States  the  electoral  franchise  is  now  enjoyed  by 
persons  not  naturalized  as  United  States  citizeus. 


420  THE   STATE   GOVERNMENTS 


to  all  citizens  of  the  United  States.^  Whether  they  really  en- 
large it,  that  is  to  say,  whether  it  did  not  exist  by  implication 
before,  is  a  legal  question,  which  I  need  not  discuss. 

II.  The  power  of  a  State  over  all  communities  within  its 
limits  is  absolute.  It  may  grant  or  refuse  local  government  as 
it  pleases.  The  population  of  the  city  of  Providence  is  more 
than  one-third  of  that  of  the  State  of  Rhode  Island,  the  popu- 
lation of  New  York  City  one-fourth  that  of  the  State  of  New 
York.  But  the  State  might  in  either  case  extinguish  the 
municipality,  and  govern  the  city  by  a  single  State  commis- 
sioner appointed  for  the  purpose,  or  leave  it  without  any 
government  whatever.  The  city  would  have  no  right  of 
complaint  to  the  Federal  President  or  Congress  against  such  a 
measure.  Massachusetts  lately  remodelled  the  city  government 
of  Boston  just  as  the  British  Parliament  might  remodel  that 
of  Birmingham.  Let  an  Englishman  imagine  a  county  council 
for  Warwickshire  suppressing  the  municipality  of  Birmingham, 
or  a  Frenchman  imagine  the  department  of  the  Rhone  extin- 
guishing the  municipality  of   Lyons,  with   no   possibility  of 

1  "  The  line  of  distinction  between  the  privileges  and  immunities  of  citizens 
of  the  United  States,  and  those  of  citizens  of  the  several  States,  must  be  traced 
along  the  boundary  of  their  respective  spheres  of  action,  and  the  two  classes 
must  be  as  different  in  their  nature  as  are  the  functions  of  their  resj^ective  gov- 
ernments. A  citizen  of  the  United  States  as  such  has  a  right  to  participate  in 
foreign  and  inter-state  commerce,  to  have  the  benefit  of  the  postal  laws,  to  make 
use  in  common  with  others  of  the  navigable  waters  of  the  United  States,  and  to 
pass  from  State  to  State,  and  into  foreign  countries,  because  over  all  these  sub- 
jects the  jurisdiction  of  the  United  States  extends,  and  they  are  covered  by  its 
laws.  The  privileges  suggest  the  immunities.  Wherever  it  is  the  duty  of  the 
United  States  to  give  protection  to  a  citizen  against  any  harm,  inconvenience, 
or  deprivation,  the  citizen  is  entitled  to  an  immunity  which  pertains  to  Federal 
citizenship.  One  very  plain  immunity  is  exemption  from  any  tax,  burden,  or 
imposition  under  State  laws  as  a  condition  to  the  enjoyment  of  any  right  or 
privilege  under  the  laws  of  the  United  States.  .  .  .  Whatever  one  may  claim  as 
of  right  under  the  Constitution  and  laws  of  the  United  States  by  virtue  of  his 
citizenship,  is  a  privilege  of  a  citizen  of  the  United  States.  Whatever  the 
Constitution  and  laws  of  the  United  States  entitle  him  to  exemption  from,  he 
may  claim  an  exemption  in  respect  to.  And  such  a  right  or  privilege  is 
abridged  whenever  the  State  law  interferes  with  any  legitimate  operation  of 
Federal  authority  which  concerns  his  interest,  whether  it  be  an  authority 
actively  exerted,  or  resting  only  in  the  express  or  implied  command  or  assur- 
ance of  the  Federal  Constitution  or  law.  But  the  United  States  can  neither 
grant  nor  secure  to  its  citizens  rights  or  privileges  which  are  not  expressly  or 
by  reasonable  implication  placed  under  its  jurisdiction,  and  all  not  so  jplaced 
are  left  to  the  exclusive  protection  of  the  States."  —  Cooley,  Principles,  pp. 
245-247. 


CHAP.  XXXVI  NATURE   OF  THE   STATE  421 

intervention  by  the  central  authority,  and  he  will  measure  the 
difference  between  the  American  States  and  the  local  govern- 
ments of  Western  Europe. 

III.  A  State  commands  the  allegiance  of  its  citizens,  and 
may  punish  them  for  treason  against  it.  The  power  has 
rarely  been  exercised,  but  its  undoubted  legal  existence  had 
much  to  do  with  inducing  the  citizens  of  the  Southern  States 
to  follow  their  governments  into  secession  in  1861.  They 
conceived  themselves  to  owe  allegiance  to  the  State  as  well  as 
to  the  Union,  and  when  it  became  impossible  to  preserve  both, 
because  the  State  had  declared  its  secession  from  the  Union, 
they  might  hold  the  earlier  and  nearer  authority  to  be  para- 
mount. Allegiance  to  the  State  must  now,  since  the  war,  be 
taken  to  be  subordinate  to  allegiance  to  the  Union.  But 
allegiance  to  the  State  still  exists ;  treason  against  the  State 
is  still  possible.  One  cannot  think  of  treason  against  Warwick- 
shire or  the  department  of  the  Rhone. 

These  are  illustrations  of  the  doctrine  which  Europeans 
often  fail  to  grasp,  that  the  American  States  were  originally  in 
a  certain  sense,  and  still  for  certain  purposes  remain,  sovereign 
States.  Each  of  the  original  thirteen  became  sovereign  (so  far 
as  its  domestic  affairs  were  concerned,  though  not  as  respects 
international  relations)  when  it  revolted  from  the  mother 
country  in  1776.  By  entering  the  Confederation  of  1781-88  it 
parted  with  one  or  two  of  the  attributes  of  sovereignty,  by 
accepting  the  Federal  Constitution  in  1788-91  it  subjected 
itself  for  certain  specified  purposes  to  a  central  government, 
but  claimed  to  retain  its  sovereignty  for  all  other  purposes. 
That  is  to  say,  the  authority  of  a  State  is  an  inherent,  not  a 
delegated,  authority.  It  has  all  the  powers  which  any  inde- 
pendent government  can  have,  except  such  as  it  can  be  affirma- 
tively shown  to  have  stripped  itself  of,  while  the  Federal 
Government  has  only  such  powers  as  it  can  be  affirmatively 
shown  to  have  received.  To  use  the  legal  expression,  the 
presumption  is  always  for  a  State,  and  the  biirden  of  proof 
lies  upon  any  one  who  denies  its  authority  in  a  particular 
matter.^ 

1  As  the  colonies  had  associated  themselves  into  a  league,  at  the  very  time  at 
which  they  revolted  from  the  British  Crown,  and  as  their  foreign  relations 
were  always  managed  by  the  authority  and  organs  of  this  league,  no  one  of 


422  THE   STATE   GOVERNMENTS  part  n 

What  State  sovereignty  means  and  includes  was  a  question 
which  incessantly  engaged  the  most  active  legal  and  political 
minds  of  the  nation,  from  1789  down  to  1870.  Some  thought 
it  paramount  to  the  rights  of  the  Union.  Some  considered  it 
as  held  in  suspense  by  the  Constitution,  but  capable  of  reviving 
as  soon  as  a  State  should  desire  to  separate  from  the  Union. 
Some  maintained  that  each  State  had  in  accepting  the  Con- 
stitution finally  renounced  its  sovereignty,  which  thereafter 
existed  only  in  the  sense  of  such  an  undefined  domestic  legis- 
lative and  administrative  authority  as  had  not  been  conferred 
upon  Congress.  The  conflict  of  these  views,  which  became 
acute  in  1830  when  South  Caroliaa  claimed  the  right  of  nulli- 
fication, produced  Secession  and  the  war  of  1861-65.  Since 
the  defeat  of  the  Secessionists,  the  last  of  these  views  may 
be  deemed  to  have  been  established,  and  the  term  "  State  sov- 
ereignty "  is  now  but  seldom  heard.  Even  ''  States'  rights  " 
have  a  different  meaning  from  that  which  they  had  thirty 
years  ago.^ 

A  European  who  now  looks  calmly  back  on  this  tremendous 
controversy  of  tongue,  pen,  and  sword,  will  be  apt  to  express 
his  ideas  of  it  in  the  following  way.  He  will  remark  that 
much  of  the  obscurity  and  perplexity  arose  from  confounding 
the  sovereignty  of  the  American  nation  with  the  sovereignty 
of  the  Federal  Government.  The  Federal  Government  clearly 
was  sovereign  only  for  certain  purposes,  i.e.  only  in  so  far  as 
it  had  received  specified  powers  from  the  Constitution.  These 
powers  did  not,  and  in  strict  legal  construction  do  not  now, 
abrogate  the  supremacy  of  the  States  in  their  proper  sphere. 
A  State  still  possesses  one  important  attribute  of  sovereignty 
—  immunity  from  being  sued  except  by  another  State.      But 

them  ever  was  for  international  purposes  a  free  and  independent  sovereign 
State.  Abraham  Lincoln  was  in  this  sense  justified  in  saying  that  the  Union  was 
older  than  the  States,  and  had  created  them  as  States.  But  what  are  we  to  say 
of  North  Carolina  and  Rhode  Island,  after  the  acceptance  of  the  Constitution  of 
1787-89  by  the  other  eleven  States?  They  were  out  of  the  old  Confederation, 
for  it  had  expired.  They  were  not  in  the  new  Union,  for  they  refused  during 
many  months  to  enter  it.  What  else  can  they  have  been  during  those  months 
except  sovereign  commonwealths  ? 

1  States  riglits  was  a  watchword  in  the  South  for  many  years.  In  1851  there 
was  a  student  at  Harvard  College  from  South  Carolina  who  bore  the  name  of 
States  Rights  Gist,  baptized,  so  to  speak,  into  Calhounism.  He  rose  to  be  a 
brigadier-general  iu  the  Confederate  army,  and  fell  in  the  Civil  War. 


CHAP.  XXXVI  NATURE  OF  THE  STATE  423 

the  American  nation  which  had  made  the  Constitution,  had 
done  so  in  respect  of  its  own  sovereignty,  and  might  well  be 
deemed  to  retain  that  sovereignty  as  paramount  to  any  rights 
of  the  States.  The  feeling  of  this  ultimate  supremacy  of  the 
nation  was  what  swayed  the  minds  of  those  who  resisted 
Secession,  just  as  the  equally  well-grounded  persuasion  of  the 
limited  character  of  the  central  Federal  Government  satisfied 
the  conscience  of  the  seceding  South. 

The  Constitution  of  1789  was  a  compromise,  and  a  compro- 
mise arrived  at  by  allowing  contradictory  propositions  to  be 
represented  as  both  true.  It  has  been  compared  to  the  declara- 
tions made  with  so  much  energy  and  precision  of  language  in 
the  ancient  hymn  Quicunque  Vidt,  where,  however,  the  appar- 
ent contradiction  has  always  been  held  to  seem  a  contradiction 
only  because  the  human  intellect  is  unequal  to  the  comprehen- 
sion of  such  profound  mysteries.  To  every  one  who  urged 
that  there  were  thirteen  States,  and  therefore  thirteen  govern- 
ments, it  was  answered,  and  truly,  that  there  was  one  gov- 
ernment, because  the  people  were  one.  To  every  one  who 
declared  that  there  was  one  government,  it  was  answered  with 
no  less  truth  that  there  were  thirteen.  Thus  counsel  was 
darkened  by  words  without  knowledge ;  the  question  went  off 
into  metaphysics,  and  found  no  end,  in  wandering  mazes  lost. 

There  was,  in  fact,  a  divergence  between  the  technical  and 
the  practical  aspects  of  the  question.  Technically,  the  seced- 
ing States  had  an  arguable  case ;  and  if  the  point  had  been  one 
to  be  decided  on  the  construction  of  the  Constitution  as  a 
court  decides  on  the  construction  of  a  commercial  contract, 
they  were  possibly  entitled  to  judgment.  Practically,  the  de- 
fenders of  the  Union  stood  on  firmer  ground,  because  circum- 
stances had  changed  since  1789  so  as  to  make  the  nation  more 
completely  one  nation  than  it  then  was,  and  had  so  involved 
the  fortunes  of  the  majority  which  held  to  the  Union  with 
those  of  the  minority  seeking  to  depart  that  the  majority 
might  feel  justified  in  forbidding  their  departure.  Stripped 
of  legal  technicalities,  the  dispute  resolved  itself  into  the 
problem  often  proposed  but  capable  of  no  general  solution: 
When  is  a  majority  entitled  to  use  force  for  the  sake  of  retain- 
ing a  minority  in  the  same  political  body  with  itself?  To 
this  question,  when  it  appears  in  a  concrete  shape,  as  to  the 


424  THE   STATE   GOVERNMENTS  part  ii 

similar  question  when  an  insurrection  is  justifiable,  an  answer 
can  seldom  be  given  beforehand.  The  result  decides.  When 
treason  prospers,  none  dare  call  it  treason. 

The  Constitution,  which  had  rendered  many  services  to  the 
American  people,  did  them  an  inevitable  dis-service  when  it 
fixed  their  minds  on  the  legal  aspects  of  the  question.  Law 
was  meant  to  be  the  servant  of  politics,  and  must  not  be  suf- 
fered to  become  the  master.  A  case  had  arisen  which  its  for- 
mulae were  unfit  to  deal  with,  a  case  which  had  to  be  settled  on 
large  moral  and  historical  grounds.  It  was  not  merely  the 
superior  physical  force  of  the  North  that  prevailed  ;  it  was  the 
moral  forces  which  rule  the  world,  forces  which  had  long 
worked  against  slavery,  and  were  ordained  to  save  North 
America  from  the  curse  of  hostile  nations  es-tablished  side  by 
side. 

The  word  "  sovereignty,"  which  has  in  many  ways  clouded 
the  domain  of  public  laAv  and  jurisprudence,  confused  men's 
minds  by  making  them  assume  that  there  must  in  every  coun- 
try exist,  and  be  discoverable  by  legal  inquiry,  either  one  body 
invested  legally  with  supreme  power  over  all  minor  bodies,  or 
several  bodies  which,  though  they  had  consented  to  form  part 
of  a  larger  body,  were  each  in  the  last  resort  independent  of  it, 
and  responsible  to  none  but  themselves.^  They  forgot  that  a 
Constitution  may  not  have  determined  where  legal  supremacy 
shall  dwell.  Where  the  Constitution  of  the  United  States 
placed  it  was  at  any  rate  doubtful,  so  doubtful  that  it  would 
have  been  better  to  drop  technicalities,  and  recognize  the  broad 
fact  that  the  legal  claims  of  the  States  had  become  incompati- 
ble with  the  historical  as  well  as  legal  claims  of  the  nation. 
In  the  uncertainty  as  to  where  legal  right  resided,  it  would 
have  been  prudent  to  consider  where  physical  force  resided. 
The  South  however  thought  herself  able  to  resist  any  physical 

1  A  further  confusion  arises  from  the  fact  that  men  are  apt  in  talking  of 
sovereignty  to  mix  up  (as  the  Benthamite  school  have  unfortunately  done) 
legal  supremacy  with  practical  predominance.  They  ought  to  go  together,  and 
law  seeks  to  make  them  go  together.  But  it  may  happen  that  the  person  or 
body  in  whom  law  vests  supreme  authority  is  unable  to  enforce  that  authority: 
so  the  legal  sovereign  and  the  actual  sovereign  —  that  is  to  say,  the  force  which 
will  prevail  in  physical  conflict  —  are  different.  There  is  always  a  strongest 
force ;  but  the  force  recognized  by  law  may  not  be  really  the  strongest ;  and  of 
several  forces  it  may  be  impossible  to  tell,  till  they  have  come  into  actual  phys- 
ical conflict,  which  is  the  strongest. 


CHAP.  XXXVI  NATURE   OF   THE   STATE  425 

force  which  the  rest  of  the  nation  might  bring  against  her. 
Thus  encouraged,  she  took  her  stand  on  the  doctrine  of  States' 
Rights  :  and  then  followed  a  pouring  out  of  blood  and  treasure 
such  as  was  never  spent  on  determining  a  point  of  law  before, 
not  even  when  Edward  III.  and  his  successors  waged  war  for 
a  hundred  years  to  establish  the  claim  of  females  to  inherit 
the  crown  of  France. 

What,  then,  do  the  rights  of  a  State  now  include  ?  Every 
right  or  power  of  a  Government  except :  — 

The  right  of  secession  (not  abrogated  in  terms,  but  admitted 
since  the  war  to  be  no  longer  claimable.  It  is  expressly 
negatived  in  the  recent  Constitutions  of  several  South- 
ern States). 

Powers  which  the  Constitution  withholds  from  the  States 
(including  that  of  intercourse  with  foreign  govern- 
ments). 

Powers  which  the  Constitution  expressly  confers  on  the 
Federal  Government.     - 

As  respects  some  powers  of  the  last  class,  however,  the 
States  may  act  concurrently  with,  or  in  default  of  action  by, 
the  Federal  Government.  It  is  only  from  contravention  of  its 
action  that  they  must  abstain.  And  where  contravention  is 
alleged  to  exist,  whether  legislative  or  executive,  it  is  by  a 
court  of  law,  and,  in  case  the  decision  is  in  the  first  instance 
favourable  to  the  pretensions  of  the  State,  ultimately  by  a 
Federal  court,  that  the  question  falls  to  be  decided.^ 

A  reference  to  the  preceding  list  of  what  each  State  may 
create  in  the  way  of  distinct  institutions  will  show  that  these 
rights  practically  cover  nearly  all  the  ordinary  relations  of 
citizens  to  one  another  and  to  their  Government,  nearly  all  the 
questions  which  have  been  most  agitated  in  England  and 
France  of  recent  years.  An  American  may,  through  a  long 
life,  never  be  reminded  of  the  Federal  Government,  except 
when  he  votes  at  presidential  and  congressional  elections, 
buys  a  package  of  tobacco  bearing  the  government  stamp, 
lodges  a  complaint  against  the  post-office,  and  opens  his  trunks 
for  a  custom-house  officer  on  the  pier  at  New  York  when  he 
returns  from  a  tour  in  Europe.  His  direct  taxes  are  paid  to 
officials  acting  under  State  laws.  The  State,  or  a  local  author- 
1  See  Chapter  XXII.  ante. 


426  THE   STATE    GOVERNMENTS 


ity  constituted  by  State  statutes,  registers  his  birth,  appoints 
his  guardian,  pays  for  his  schooling,  gives  him  a  share  in  the 
estate  of  his  father  deceased,  licenses  him  when  he  enters  a 
trade  (if  it  be  one  needing  a  licence),  marries  him,  divorces 
him,  entertains  civil  actions  against  him,  declares  him  a  bank- 
rupt, hangs  him  for  murder.  The  police  that  guard  his  house, 
the  local  boards  which  look  after  the  poor,  control  highways, 
impose  water  rates,  manage  schools  —  all  these  derive  their 
legal  powers  from  his  State  alone.  Looking  at  this  immense 
compass  of  State  functions,  Jefferson  would  seem  to  have  been 
not  far  wrong  when  he  said  that  the  Federal  government  was 
nothing  more  than  the  American  department  of  foreign  affairs. 
But  although  the  National  government  touches  the  direct 
interests  of  the  citizen  less  than  does  the  State  government,  it 
touches  his  sentiment  more.  Hence  the  strength  of  his  attach- 
ment to  the  former  and  his  interest  in  it  must  not  be  measured 
by  the  frequency  of  his  dealings  with  it.  In  the  partition- 
ment  of  governmental  functions  between  nation  and  State,  the 
State  gets  the  most  but  the  nation  the  highest,  so  the  balance 
between  the  two  is  preserved. 

Thus  every  American  citizen  lives  in  a  duality  of  which 
Europeans,  always  excepting  the  Swiss,  and  to  some  extent  the 
Germans,  have  no  experience.  He  lives  under  two  govern- 
ments and  two  sets  of  laws ;  he  is  animated  by  two  patriotisms 
and  owes  two  allegiances.  That  these  should  both  be  strong  and 
rarely  be  in  conflict  is  most  fortunate.  It  is  the  result  of  skil- 
ful adjustment  and  long  habit,  of  the  fact  that  those  whose 
votes  control  the  two  sets  of  governments  are  the  same  per- 
sons, but  above  all  of  that  harmony  of  each  set  of  institutions 
with  the  other  set,  a  harmony  due  to  the  identity  of  the  prin- 
ciples whereon  both  are  founded,  which  makes  each  appear 
necessary  to  the  stability  of  the  other,  the  States  to  the  nation 
as  its  basis,  the  National  Government  to  the  States  as  their 
protector. 


CHAPTER   XXXVII 

STATE    CONSTITUTIONS 

The  government  of  each  of  the  forty-four  States  is  deter- 
mined by  and  set  forth  in  its  Constitution,  a  comprehensive 
fundamental  law,  or  rather  group  of  laws  included  in  one  in- 
strument, which  has  been  directly  enacted  by  the  people  of  the 
State,  and  is  capable  of  being  repealed  or  altered,  not  by  their 
representatives,  but  by  themselves  alone.  As  the  Constitution 
of  the  United  States  stands  above  Congress  and  out  of  its 
reach,  so  the  Constitution  of  each  State  stands  above  the  legis- 
lature of  that  State,  cannot  be  varied  in  any  particular  by  the 
State  legislature,  and  involves  the  invalidity  of  any  statute 
passed  by  that  legislature  which  is  found  to  be  inconsistent 
with  it. 

The  State  Constitutions  are  the  oldest  things  in  the  politi- 
cal history  of  America,  for  they  are  the  continuations  and  rep- 
resentatives of  the  royal  colonial  charters,  whereby  the  earliest 
English  settlements  in  America  were  created,  and  under  which 
their  several  local  governments  were  established,  subject  to 
the  authority  of  the  English  Crown  and  ultimately  of  the 
British  Parliament.  But,  like  most  of  the  institutions  under 
which  English-speaking  peoples  now  live,  they  have  a  pedigree 
which  goes  back  to  a  time  anterior  to  the  discovery  of  America 
itself.  It  begins  with  the  English  Trade  Guild  of  the  middle 
ages,  itself  the  child  of  still  more  ancient  corporations,  dating 
back  to  the  days  of  imperial  Rome,  and  formed  under  her  im- 
perishable law.  Charters  were  granted  to  merchant  guilds  in 
England  as  far  back  as  the  days  of  King  Henry  I.  Edward 
IV.  gave  an  elaborate  one  to  the  Merchant  Adventurers  trading 
with  Planders  in  146.3.  In  it  we  may  already  discern  the  ar- 
rangements which  are  more  fully  set  forth  in  two  later  charters 
of  greater  historical  interest,  the  charter  of  Queen  Elizabeth 

427 


428  THE   STATE   GOVERNMENTS  part  ii 

to  the  East  India  Company  in  1599,  and  the  charter  of  Charles 
I.  to  the  "  Governor  and  Company  of  the  Massachusetts  Bay 
in  Newe-England  "  in  1628.  Both  these  instruments  establish 
and  incorporate  trading  companies,  with  power  to  implead  and 
be  impleaded,  to  use  a  common  seal,  to  possess  and  acquire 
lands  tenements  and  hereditaments,  with  provisions  for  the 
making  of  ordinances  for  the  welfare  of  the  company.  The 
Massachusetts  Charter  creates  a  frame  of  government  consist- 
ing of  a  governor,  deputy-governor,  and  eighteen  assistants 
(the  term  still  in  use  in  many  of  the  London  city  guilds),  and 
directs  them  to  hold  four  times  a  year  a  general  meeting  of  the 
company,  to  be  called  the  "greate  and  generall  Court,"  in 
which  general  court  "  the  Governor  or  deputie  Governor,  and 
such  of  the  assistants  and  Freemen  of  the  Company  as  shall 
be  present,  shall  have  full  power  and  authority  to  choose  other 
persons  to  be  free  of  the  Company,  and  to  elect  and  constitute 
such  officers  as  they  shall  thinke  fitt  for  managing  the  affaires 
of  the  saide  Governor  and  Company,  and  to  make  Lawes  and 
Ordinances  for  the  Good  and  Welfare  of  the  saide  Company, 
and  for  the  Government  and  Ordering  of  the  saide  Landes  and 
Plantasion,  and  the  People  inhabiting  and  to  inhabite  the  same, 
soe  as  such  Lawes  and  Ordinances  be  not  contrary  or  repug- 
nant to  the  Lawes  and  Statuts  of  this  our  realme  of  England." 
In  1691,  the  charter  of  1628  having  been  declared  forfeited  in 
1684,  a  new  one  was  granted  by  King  William  and  Queen 
Mary,  and  this  instrument,  while  it  retains  much  of  the  lan- 
guage and  some  of  the  character  of  the  trade  guild  charter,  is 
really  a  political  frame  of  government  for  a  colony.  The  as- 
sistants receive  the  additional  title  of  councillors  ;  their  number 
is  raised  to  twenty-eight ;  they  are  to  be  chosen  by  the  general 
court,  and  the  general  court  itself  is  to  consist,  together  with 
the  governor  and  assistants,  of  freeholders  elected  by  towns 
or  places  within  the  colony,  the  electors  being  persons  with  a 
forty  shilling  freehold  or  other  property  worth  £40.  The 
governor  is  directed  to  appoint  judges,  commissioners  of  oyer 
and  terminer,  etc. ;  the  general  court  receives  power  to  estab- 
lish judicatories  and  courts  of  record,  to  pass  laws  (being  not 
repugnant  to  the  laws  of  England),  and  to  provide  for  all  neces- 
sary civil  offices.  An  appeal  from  the  courts  shall  always  be 
to  the  King  in  his  privy  council.     This  is  a  true  political 


CHAP.  XXXVII  STATE   CONSTITUTIONS  429 

Constitution.^  Under  it  the  colony  was  governed,  and  in  the 
main  well  and  wisely  governed,  till  1780.  Much  of  it,  not 
merely  its  terms,  such  as  the  name  General  Court,  but  its  solid 
framework,  was  transferred  bodily  to  the  Massachusetts  Con- 
stitution of  1780,  which  is  now  in  force,  and  which  profoundly 
influenced  the  Convention  that  prepared  the  Federal  Constitu- 
tion in  1787.  Yet  the  charter  of  1691  is  nothing  but  an  exten- 
sion and  development  of  the  trading  charter  of  1628,  in  which 
there  already  appears,  as  there  had  appeared  in  Edward  IV.'s 
charter  of  1463,  and  in  the  East  India  Company's  charter  of 
1599,  the  provision  that  the  power  of  law-giving,  otherwise  un- 
limited, should  be  restricted  by  the  terms  of  the  charter  itself, 
which  required  that  every  law  for  the  colony  should  be  agreea- 
ble to  the  laws  of  England.  We  have  therefore  in  the  three 
charters  which  I  have  named,  those  of  1463,  1599,  and  1628,  as 
well  as  in  that  of  1691,  the  essential  and  capital  characteristic 
of  a  Rigid  or  supreme  Constitution  —  viz.  a  frame  of  govern- 
ment established  by  a  superior  authority,  creating  a  subordi- 
nate law-making  body,  which  can  do  everything  except  violate 
the  terms  and  transcend  the  powers  of  the  instrument  to  which 
it  owes  its  own  existence.  So  long  as  the  colony  remained 
under  the  British  Crown,  the  superior  authority,  which  could 
amend  or  remake  the  frame  of  government,  was  the  British 
Crown  or  Parliament.  When  the  connection  with  Britain  was 
severed,  that  authority  passed  over,  not  to  the  State  legis- 
lature, which  remained  limited,  as  it  always  had  been,  but  to 
the  people  of  the  now  independent  commonwealth,  whose  will 
speaks  through  what  is  now  the  State  Constitution,  just  as  the 
will  of  the  Crown  or  of  Parliament  had  spoken  through  the 
charters  of  1628  and  1691. 

1  The  oldest  truly  political  Constitution  in  America  is  the  instrument  called 
the  Fundamental  Orders  of  Connecticut,  framed  by  the  inhabitants  of  Windsor, 
Hartford,  and  Wetherstield  in  1638,  memorable  year,  when  the  ecclesiastical 
revolt  of  Scotland  saved  the  liberties  of  England.  Connecticut  was  afterwards 
regularized  by  Charles  XL's  charter  of  16(32  to  "  the  Governor  and  Company  of 
the  English  colony  of  Connecticut."  The  agreement  drawn  up  in  the  cabin  of 
the  Mayflower  may  perhaps  claim  to  have  in  it  the  germs  of  a  government. 

I  am  here  tracing  only  the  formal  and  legal  growth  of  State  Constitutions. 
Their  democratic  spirit  and  contents  are  largely  due  to  tlie  ideas  with  wliic-h 
the  theology  of  the  Reformers,  and  especially  of  Calvin,  had  filled  the  minds 
of  the  Puritan  emigrants;  and  the  ecclesiastical  arrangements  they  had  set  up 
powerfully  influenced  those  of  the  nascent  political  communities. 


430  THE   STATE    GOVEKNMENTS  part  ii 

I  have  taken  the  case  of  Massachusetts  as  the  best  example 
of  the  way  in.  which  the  trading  Company  grows  into  a  colony, 
and  the  colony  into  a  State.  But  some  of  the  other  colonies 
furnish  illustrations  scarcely  less  apposite.  The  oldest  of 
them  all,  the  acorn  whence  the  oak  of  English  dominion  in 
America  has  sprung,  the  colony  of  Virginia,  was,  by  the  second 
charter,  of  1609,  established  under  the  title  of  "  The  Treasurer 
and  Company  of  Adventurers  and  Planters  of  the  City  of  Lon- 
don for  the  first  colony  in  Virginia."  ^ 

Within  the  period  of  ten  years,  under  the  last  of  the  Tudors 
and  the  first  of  the  Stuarts,  two  trading  charters  were  issued  to 
two  Companies  of  English  adventurers.  One  of  these  charters 
is  the  root  of  English  title  to  the  East  and  the  other  to  the  West. 
One  of  these  Companies  has  grown  into  the  Empire  of  India ; 
the  other  into  the  United  States  of  North  America.  If  England 
had  done  nothing  else  in  history,  she  might  trust  for  her  fame 
to  the  work  which  these  charters  began.  And  the  foundations 
of  both  dominions  were  laid  in  the  age  which  was  adorned  by 
the  greatest  of  all  her  creative  minds,  and  gave  birth  to  the  men 
who  set  on  a  solid  basis  a  frame  of  representative  government 
which  all  the  free  nations  of  the  modern  world  have  copied. 

When,  in  1776,  the  thirteen  colonies  threw  off  their  allegiance 
to  King  George  III.,  and  declared  themselves  independent 
States,  the  colonial  charter  naturally  became  the  State  Consti- 
tution.^ In  most  cases  it  was  remodelled,  with  large  altera- 
tions, by  the  revolting  colony.  But  in  three  States  it  was 
maintained   unchanged,  except,   of   course,   so  far   as   Crown 

1  The  phrase  First  colony  distinguishes  what  afterwards  became  the  State  of 
Virginia  from  the  more  northerly  parts  of  Virginia,  afterwards  called  New 
England.  The  Second  colony  was  to  be  Plymouth,  one  of  the  two  settlements 
which  became  Massachusetts. 

2  Even  in  declaring  herself  independent,  New  Jersey  clung  to  the  hope  that 
the  mother  country  would  return  to  wiser  counsels,  and  avert  the  departure  of 
her  children.  She  added  at  the  end  of  her  Constitution  of  2d  July  1776  the 
following  proviso:  "  Provided  always,  and  it  is  the  true  intent  and  meaning 
of  this  Congress,  that  if  a  reconciliation  between  Great  Britain  and  these 
colonies  should  take  place,  and  the  latter  be  taken  again  under  the  protection 
and  government  of  the  Crown  of  Britain,  this  charter  shall  be  null  and  void, 
otherwise  remain  firm  and  inviolable."  The  truth  is  that  the  colonists,  till 
alienated  by  the  behaviour  of  England,  had  more  kindly  feelings  towards 
her  than  she  had  towards  them.  To  them  she  was  the  old  home,  to  her  they 
were  simply  customers.  Some  interesting  illustrations  of  the  views  then 
entertained  as  to  the  use  of  colonies  may  be  found  in  the  famous  discussion  in 
the  fourth  book  of  Adam  Smith's  Wealth  of  Nations,  which  appeared  in  1776. 


CHAP.  XXXVII  STATE   CONSTITUTIONS  431 


authority  was  concerned,  viz.  in  Massachusetts  till  1780,  in 
Connecticut  till  1818,  and  in  Rhode  Island  till  1842.^  The 
other  thirty-one  States  admitted  to  the  Union  in  addition  to 
the  original  thirteen,  have  all  entered  it  as  organized  self- 
governing  communities,  with  their  Constitutions  already  made 
by  their  respective  peoples.  Each  Act  of  Congress  which 
admits  a  new  State  admits  it  as  a  subsisting  commonwealth, 
sometimes  empowering  its  people  to  meet  and  enact  a  consti- 
tution for  themselves  (subject  to  conditions  mentioned  in  the 
act)  sometimes  accepting  and  confirming  a  constitution  so 
already  made  by  the  people.^  Congress  may  impose  conditions 
which  the  State  Constitution  must  fulfil ;  and  in  admitting  the 
six  newest  States  has  affected  to  retain  the  power  of  maintain- 
ing these  conditions  in  force.  But  the  authority  of  the  State 
Constitutions  does  not  flow  from  Congress,  but  from  accept- 
ance by  the  citizens  of  the  States  for  which  they  are  made.  Of 
these  instruments,  therefore,  no  less  than  of  the  Constitutions 
of  the  thirteen  original  States,  we  may  say  that  although  sub- 
sequent in  date  to  the  Federal  Constitution,  they  are,  so  far 
as  each  State  is  concerned,  de  jure  prior  to  it.  Their  authority 
over  their  own  citizens  is  nowise  derived  from  it.^    Nor  is  this 

1  Rhode  Island  simply  passed  a  statute  by  her  legislature  in  May  1776,  sub- 
stituting allegiance  to  the  colony  for  allegiance  to  the  King.  Connecticut 
passed  the  following  statute:  —  "  Be  it  enacted  by  the  Governor  and  Council 
and  House  of  Representatives,  in  general  court  assembled,  that  the  ancient 
form  of  civil  government  contained  in  the  charter  from  Charles  XL,  King  of 
England,  and  adopted  by  the  people  of  this  State,  shall  be  and  remain  the 
civil  Constitution  of  this  State,  under  the  sole  authority  of  the  people  thereof, 
independent  of  any  king  or  prince  whatever ;  and  that  this  republic  is,  and 
shall  for  ever  be  and  remain,  a  free,  sovereign,  and  independent  State,  by  the 
name  of  the  State  of  Connecticut."  (Three  paragraphs  follow  containing  a 
short  "Bill  of  Rights,"  and  securing  to  the  inhabitants  of  any  other  of  the 
United  States  the  same  law  and  justice  as  natives  of  the  State  enjoyed.)  This 
is  all  that  Connecticut  thouglit  necessary.  She  had  possessed,  as  did  Rhode 
Island  also,  the  right  of  appointing  her  own  governor,  and  therefore  did  not 
need  to  substitute  any  new  authority  for  a  royal  governor. 

2  In  the  Act  of  1889  for  the  admission  of  North  Dakota,  South  Dakota,  Mon- 
tana, and  AVashington,  the  former  course,  in  the  admission  of  Idaho  and 
Wyoming  in  1890,  the  latter  course  was  followed. 

3  In  practice  Congress  can  influence  the  character  of  a  State  Constitution, 
because  a  State  whose  Constitution  contains  provisions  which  Congress  disap- 
proves may  be  refused  admission.  But  since  the  extinction  of  slavery  and 
completion  of  the  process  of  reconstruction,  occasions  for  the  serious  exercise 
of  such  a  power  rarely  arise.  It  was  used  to  compel  the  seceding  States  to 
modify  their  Constitutions  so  as  to  get  rid  of  all  taint  of  slavery  before  their 
senators  and  representatives  were  readmitted  to  Congress  after  the  war.    Of 


432  THE   STATE   GOVERNMENTS  part  ii 

a  mere  piece  of  technical  laAV.  The  antiquity  of  the  older 
States  as  separate  commonwealths,  running  back  into  the  heroic 
ages  of  the  first  colonization  of  America  and  the  days  of  the 
Revolutionary  War,  is  a  potent  source  of  the  local  patriotism 
of  their  inhabitants,  and  gives  these  States  a  sense  of  historic 
growth  and  indwelling  corporate  life  which  they  could  not 
have  possessed  had  they  been  the  mere  creatures  of  the  Fed- 
eral Government. 

The  State  Constitutions  of  America  well  deserve  to  be  com- 
pared with  those  of  the  self-governing  British  colonies.  But 
one  remarkable  difference  must  be  noted  here.  The  constitu- 
tions of  British  colonies  have  all  proceeded  from  the  Imperial 
Parliament  of  the  United  Kingdom,  which  retains  its  full  legal 
power  of  legislating  for  every  part  of  the  British  dominions. 
In  many  cases  a  colonial  constitution  provides  that  it  may  be 
itself  altered  by  the  colonial  legislature,  of  course  with  the 
assent  of  the  Crown ;  but  inasmuch  as  in  its  origin  it  is  a  stat- 
utory constitution,  not  self-grown,  but  planted  as  a  shoot  by 
the  Imperial  Parliament  at  home.  Parliament  may  always  alter 
or  abolish  it.  Congress,  on  the  other  hand,  has  no  power  to 
alter  a  State  Constitution.  And  whatever  power  of  alteration 
has  been  granted  to  a  British  colony  is  exercisable  by  the  colo- 
nial legislature,  not,  as  in  America,  by  the  citizens  at  large. 

The  original  Constitutions  of  the  States,  whether  of  the  old 
thirteen  or  of  the  newer  thirty-one,  have  been  in  nearly  every 
case  (except  those  of  the  eight  newest  States)  subsequently 
recast,  in  some  instances  five,  six,  or  even  seven  times,  as  well 
as  amended  in  particular  points.  Thus  Constitutions  of  all 
dates  are  now  in  force  in  different  States,  from  that  of  Massa- 
chusetts, enacted  in  1780,  but  largely  amended  since,  to  that 
of  Kentucky,  enacted  in  1891. 

The  Constitutions  of  the  revolutionary  period  were  in  a  few 
instances  enacted  by  the  State  legislature,  acting  as  a  body 

course  Congress  is  not  bound  to  admit  a  community  desiring  to  be  recognized 
as  a  State.  Utah  has  been  kept  knocking  at  the  door  of  the  Union  for  many 
years,  because  the  majority  of  her  inhabitants  have  lain  under  suspicion,  and 
the  nation  wishes  to  retain  for  tlie  pi;rpose  of  preventing  polygamy  that  full 
control  which  can  be  exercised  over  a  Territory  but  not  over  a  State.  Sometimes 
a  dominant  party  postpones  the  admission  of  a  State  likely  to  strengthen  by 
its  vote  the  opposite  party ;  and  sometimes,  as  happened  in  the  recent  cases  of 
Wyoming,  Montana,  and  Idaho,  communities  whose  fitness  for  Statehood  might 
well  be  doubted  have  been  admitted  for  partisan  reasons. 


ciiAF.  xxxvii  STATE   CONSTTrUTlONS  433 

with  plenary  powers,  but  more  usually  by  the  people  acting 
through  a  Convention,  i.e.  a  body  especially  chosen  by  the 
voters  at  large  for  the  purpose,  and  invested  with  full  powers, 
not  only  of  drafting,  but  of  adopting  the  instrument  of  gov- 
ernment.^ Since  1835,  when  Michigan  framed  her  Constitu- 
tion, the  invariable  practice  in  the  Northern  States  has  been 
for  the  Convention,  elected  by  the  voters,  to  submit,  in  accord- 
ance Avith  the  precedents  set  by  Massachusetts  in  1780,  and  by 
Maine  in  1820,  the  draft  Constitution  framed  by  it  to  the  citi- 
zens of  the  State  at  large,  who  voted  upon  it  Yes  or  No.  They 
usually  vote  on  it  as  a  whole,  and  adopt  or  reject  it  en  bloc, 
but  sometimes  provision  is  made  for  voting  separately  on  some 
particular  point  or  points.  In  the  Southern  States  the  practice 
has  varied,  but  the  growing  tendency  has  been  to  submit  the 
draft  to  the  people.  In  1890,  however,  Mississippi  enacted  a 
new  Constitution  by  a  Convention  alone  ;  and  in  Kentucky  (in 
1891),  after  the  draft  Constitution  which  the  Convention  had 
prepared  had  been  submitted  to  and  accepted  by  a  popidar  vote 
(as  provided  by  the  statute  which  summoned  the  convention), 
the  Convention  met  again  and  made  some  alterations  on  which, 
strange  to  say,  the  people  have  not  been  since  consulted.^ 

The  people  of  a  State  retain  for  ever  in  their  hands,  alto- 
gether independent  of  the  National  government,  the  power  of 
altering  their  Constitution.  When  a  new  Constitution  is  to  be 
prepared,  or  the  existing  one  amended,  the  initiative  usually 
comes  from  the  legislature,  which  (either  by  a  simple  majority, 
or  by  a  two-thirds  majority,  or  by  a  majority  in  two  successive 

1  In  Rhode  Island  and  Connecticut  the  legislature  continued  the  colonial 
Constitution.  In  South  Carolina  a  hody  calling  itself  the  "Provincial  Con- 
gress" claimed  to  be  the  "General  Assembly,"  or  legislature  of  the  colony, 
and  as  such  enacted  the  Constitution.  In  the  other  revolting  colonies,  except 
Massachusetts,  Conventions  or  Congresses  enacted  the  Constitution,  not  sub- 
mittin<^  it  to  the  voters  for  ratification.  In  Massachusetts  the  Convention 
submit'ted  its  draft  to  the  voters  in  1780,  and  the  voters  adopted  it,  a  previous 
draft  tendered  by  the  legislature  in  1778  having  been  rejected. 

2  Proceedings  were  taken  before  the  Court  of  Appeals  of  Kentucky  to  deter- 
mine the  validity  of  these  alterations,  and  the  court  by  a  majority  upheld 
them,  on  the  ground,  it  would  seem,  that  the  legislature  and  executive  had 
treated  them  as  operative.  Sed  qusere.  It  has  also  been  suggested  that  the 
court,  being  itself  the  creature  of  the  new  Constitution,  was  not  entitled  to 
question  title  of  its  creator.  The  matter  is  further  complicated  by  the  fact 
that  somettiing  similar  had  happened  in  1850,  when  the  last  previous  Constitu- 
tion was  adopted,  and  that  that  Constitution  did  not,  like  the  statute  which 
created  the  Convention  of  1890,  prescribe  a  popular  vote. 

VOL.  I  2  ^ 


434  THE   STATE   GOVERNMENTS  part  ii 

legislatures,  as  the  Constitution  may  in  each  instance  provide) 
submits  the  matter  to  the  voters  in  one  of  two  ways.  It  may 
either  propose  to  the  people  certain  specific  amendments/  or  it 
may  ask  the  people  to  decide  by  a  direct  popular  vote  on  the 
propriety  of  calling  a  constitutional  Convention  to  revise  the 
whole  existing  Constitution.  In  the  former  case  the  amend- 
ments suggested  by  the  legislature  are  directly  voted  on  by  the 
citizens ;  in  the  latter  the  legislature,  so  soon  as  the  citizens 
have  voted  for  the  holding  of  a  convention,  provides  for  the 
election  by  the  people  of  this  convention.  When  elected,  the 
Convention  meets,  sets  to  work,  goes  through  the  old  Consti- 
tution, and  prepares  a  new  one,  which  is  then  usually  presented 
to  the  people  for  ratification  or  rejection  at  the  polls.  Only 
in  the  little  State  of  Delaware  is  the  function  of  amending 
the  Constitution  still  left  to  the  legislature  without  the  subse- 
quent ratification  of  a  popular  vote,  subject,  however,  to  the 
provision  that  changes  must  be  passed  by  two  successive  legis- 
latures, and  must  have  been  put  before  the  people  at  the  elec- 
tion of  members  for  the  second.  Some  States  provide  for  the 
submission  to  the  people  at  fixed  intervals,  of  seven,  ten,  six- 
teen, or  twenty  years,  of  the  propriety  of  calling  a  convention 
to  revise  the  Constitution,  so  as  to  secure  that  the  attention 
of  the  people  shall  be  drawn  to  the  question  whether  their 
scheme  of  government  ought  or  ought  not  to  be  changed.  Be 
it  observed,  however,  that  whereas  the  Federal  Constitution 
can  be  amended  only  by  a  vote  of  three-foiirths  of  the  States, 
a  Constitution  can  in  nearly  every  State  be  changed  by  a  bare 
majority  of  the  citizens  voting  at  the  polls.'  Hence  we  may 
expect,  and  shall  find,  that  these  instruments  are  altered  more 

1  In  New  Hampshire  the  legislature  has  no  power  to  propose  amendments : 
so  the  local  authorities  take  the  sense  of  the  people  every  seven  years  as  to 
the  need  for  a  revising  Convention.  In  some  States  the  legislature  can  do  so 
only  after  stated  intervals,  e.g.  of  five  years. 

'^  Sometimes,  however,  an  absolute  majority  of  all  the  qualified  voters  is 
required.  In  Rhode  Island  (where  the  voting  is  in  town  and  ward  meetings)  a 
three-fifths  majority  is  needed,  and  in  Soutli  Carolina  the  ratification  of  the 
next  elected  legislature  by  a  two-thirds  majority  in  each  House  is  necessary. 
In  Delaware  the  proposal  to  call  a  convention  must  be  approved  by  a  majority 
of  all  the  voters,  in  Kentucky  by  at  least  one-fourth  of  the  total  number  who 
voted  at  the  last  preceding  general  election.  Delaware  having  during  several 
years  failed  in  the  attempt  to  amend  her  Constitvition  (of  1831)  by  the  legis- 
lature, fell  back,  in  1887,  on  the  proposal  to  hold  a  constitutional  convention,  but 
has  not  yet  been  able  to  secure  a  sufficiently  large  vote. 


CHAP.  XXXVII  STATE   CONSTITUTIONS  435 

frequently  and  materially  than  the  Federal  Constitution  has 
been. 

The  tendency  of  late  years  has  been  to  make  the  process  of 
alteration  quicker ;  for  recent  Constitutions  generally  provide 
that  one  legislature,  not  two  successive  legislatures,  may  pro- 
pose an  amendment,  which  shall  at  once  take  effect  if  accepted.^ 

A  State  Constitution  is  not  only  independent  of  the  central 
national  government  (save  in  certain  points  already  specified), 
it  is  also  the  fundamental  organic  law  of  the  State  itself.  The 
State  exists  as  a  commonwealth  by  virtue  of  its  Constitution, 
and  all  State  authorities,  legislative,  executive,  and  judicial, 
are  the  creatures  of,  and  subject  to,  the  State  Constitu- 
tion.^ Just  as  the  President  and  Congress  are  placed  beneath 
the  Federal  Constitution,  so  the  Governor  and  Houses  of  a 
State  are  siibject  to  its  Constitution,  and  any  act  of  theirs 
done  either  in  contravention  of  its  provisions,  or  in  excess  of 
the  powers  it  confers  on  them,  is  absolutely  void.  All  that 
has  been  said  in  preceding  chapters  regarding  the  functions  of 
the  courts  of  law  where  an  Act  of  Congress  is  alleged  to  be 
inconsistent  with  the  Federal  Constitution,  applies  equally 
where  a  statute  passed  by  a  State  legislature  is  alleged  to 
transgress  the  Constitution  of  the  State,  and  of  course  such 
validity  may  be  contested  in  any  court,  whether  a  State  court 
or  a  Federal  court,  because  the  question  is  an  ordinary  question 

1  The  following  provisions  are  found  in  the  eight  most  recent  Constitutions. 
In  South  Dakota,  Montana,  Idaho,  Wyoming,  Washington,  two-thirds  of 
all  the  members  elected  must  in  each  House  of  the  Legislature  agree  to  propose 
an  amendment.  In  Mississippi  two-thirds  of  the  members  are  required.  In 
Kentucky  three-fifths  of  all  the  members  elected  are  required.  In  North  Dakota 
a  bare  majority  of  each  House  of  one  Legislature,  and  a  majority  of  all  the 
members  in  each  House  of  the  next  Legislature  are  required,  the  amendment 
being  in  every  case  ultimately  submitted  to  the  people. 

-  Some  details  as  to  the  provisions  of  State  Constitutions  may  be  found  in 
Stimson's  American  Statute  Law,  and  in  the  article  "  States  "  in  the  American 
Cycloppedia  of  Political  Science.  Of  course  the  great  authority  is  the  collec- 
tion of  the  State  Constitutions,  embracing  (together  with  the  colonial  char- 
ters) all  that  have  been  duly  enacted  since  1776,  in  the  two  thick  quarto 
volumes  entitled  Federal  and  State  Constitutions,  published  under  the  au- 
thority of  Congress  by  Ben.  Perley  Poore,  Washington,  1878.  It  is  much  to  be 
wished  that  a  biennial  or  even  quinquennial  supplement  to  this  collection 
should  be  officially  published,  containing  all  the  new  constitutions  and  consti- 
tutional amendments.  At  present  it  is  very  difficult,  especially  for  a  resident 
in  Europe,  to  ascertain  exactly  how  the  constitution  of  each  State  stands;  and 
I  ask  indulgence  for  any  errors  into  which  I  may,  owing  to  this  difficulty,  have 
fallen. 


436  THE   STATE   GOVERNMENTS  part  ii 

of  law,  and  is  to  be  solved  by  determining  whether  or  no  a 
law  of  inferior  authority  is  inconsistent  with  a  law  of  supe- 
rior authority.  Whenever  in  any  legal  proceeding  before  any 
tribunal,  either  party  relies  on  a  State  statute,  and  the  other 
party  alleges  that  this  statute  is  ultra  vires  of  the  State  legis- 
lature, and  therefore  void,  the  tribunal  must  determine  the 
question  just  as  it  would  determine  whether  a  bye-law  made  by 
a  municipal  council  or  a  railway  company  was  in  excess  of  the 
law-making  power  which  the  municipality  or  the  company  had 
received  from  the  higher  authority  which  incorporated  it  and 
gave  it  such  legislative  power  as  it  possesses.  But  although 
Federal  courts  are  fully  competent  to  entertain  a  question  aris- 
ing on  the  construction  of  a  State  Constitution,  their  practice 
is  to  follow  the  precedent  set  by  any  decision  of  a  court  of  the 
State  in  question,  just  as  they  would  follow  the  decision  of  a 
French  court  in  determining  a  point  of  French  law.  Each  State 
must  be  assumed  to  know  its  own  law  better  than  a  stranger 
can;  and  the  supreme  court  of  a  State  is  held  to  be  the 
authorized  exponent  of  the  mind  of  the  people  who  enacted 
its  Constitution. 

A  State  Constitution  is  really  nothing  but  a  law  made  di- 
rectly by  the  people  voting  at  the  polls  upon  a  draft  sub- 
mitted to  them.  The  people  when  they  so  vote  act  as  a 
primary  and  constituent  assembling,  just  as  if  they  were  all 
summoned  to  meet  in  one  place  like  the  folkmoots  of  our 
Teutonic  forefathers.  It  is  only  their  numbers  that  prevent 
them  from  so  meeting  in  one  place,  and  oblige  the  vote  to  be 
taken  at  a  variety  of  polling  places.  Hence  the  enactment  of 
a  Constitution  is  an  exercise  of  direct  popular  sovereignty  to 
which  we  find  few  parallels  in  modern  Europe,  though  it  was 
familiar  enough  to  the  republics  of  antiquity,  and  has  lasted 
till  now  in  some  of  the  cantons  of  Switzerland.^ 

The  importance  of  this  character  of  a  State  Constitution 
as  a  popularly-enacted  law,  overriding  every  minor  State  law, 
becomes  all  the  greater  when  the  contents  of  these  Constitu- 
tions are  examined.     Europeans  conceive  of  a  constitution  as 

1  Nowadays,  however,  the  Landesscemeinden  (which  survive  only  in  Uri, 
Unterwalden,  Glarns,  and  Appenzell,  having  been  recently  discontinued  in 
Schwyz  and  Zug)  do  not  act  as  constituent  or  constitution-enacting  bodies, 
though  they  still  directly  legislate. 


CHAP,  xxxvii  STATE   CONSTITUTIONS  437 


an  instrument,  usually  a  short  instrument,  which  creates  a 
frame  of  government,  defines  its  departments  and  powers,  and 
declares  the  "  primordial  rights  "  of  the  subject  or  citizen  as 
against  the  rulers.  An  American  State  Constitution  does  this, 
but  does  more ;  and  in  most  cases,  infinitely  more.  It  deals 
Avith  a  variety  of  topics  which  in  Europe  would  be  left  to  the 
ordinary  action  of  the  legislature,  or  of  administrative  author- 
itiies  ;  and  it  pursues  these  topics  into  a  minute  detail  hardly  to 
be  looked  for  in  a  fundamental  instrument.  Some  of  these 
details  will  be  mentioned  presently.  Meantime  I  will  sketch 
in  outline  the  frame  and  contents  of  the  more  recent  constitu- 
tions, reserving  for  next  chapter  remarks  on  the  differences  of 
type  between  those  of  the  older  and  those  of  the  newer  States. 
A  normal  Constitution  consists  of  five  parts  :  — 

I.  The  definition  of  the  boundaries  of  the  State.  (This 
does  not  occur  in  the  case  of  the  older  States.) 

II.  The  so-called  Bill  of  Eights  —  an  enumeration  (whereof 
more  anon)  of  the  citizens'  primordial  rights  to  liberty  of 
person  and  security  of  property.  This  usually  stands  at  the 
beginning  of  the  Constitution,  but  occasionally  at  the  end. 

III.  The  frame  of  government  —  i.e.  the  names,  functions, 
and  powers  of  the  legislative  bodies  (including  provisions 
anent  the  elective  suffrage),  the  executive  officers,  and  the 
courts  of  justice. 

IV.  Miscellaneous  provisions  relating  to  administration  and 
law,  including  articles  treating  of  education,  of  the  militia,  of 
taxation  and  revenue,  of  the  public  debts,  of  local  government, 
of  State  prisons  and  hospitals,  of  agriculture,  of  labour,  of 
impeachment,  and  of  the  method  of  amending  the  Constitu- 
tion, besides  other  matters  still  less  political  in  their  character. 
The  order  in  which  these  occur  differs  in  different  instruments, 
and  there  are  some  in  which  some  of  the  above  topics  are  not 
mentioned  at  all.  The  more  recent  Constitutions  and  those  of 
the  newer  States  are  much  fuller  on  these  points. 

V.  The  Schedule,  which  contains  provisions  relating  to  the 
method  of  submitting  the  Constitution  to  the  vote  of  the 
people,  and  arrangements  for  the  transition  from  the  previous 
Constitution  to  the  new  one  which  is  to  be  enacted-  by  that 
vote.  Being  of  a  temporary  nature,  the  schedule  is  not 
strictly  a  part  of  the  Constitution. 


438  THE   STATE   GOVEENMENTS  part  n 

The  Bill  of  Rights  is  historically  the  most  interesting  part 
of  these  Constitutions,  for  it  is  the  legitimate  child  and 
representative  of  Magna  Charta,  and  of  those  other  declara- 
tions and  enactments,  down  to  the  Bill  of  Rights  of  the  Act 
of  1  William  and  Mary,  session  2,  by  which  the  liberties  of 
Englishmen  have  been  secured.  Most  of  the  thirteen  colonies 
when  they  asserted  their  independence  and  framed  their  Con- 
stitutions inserted  a  declaration  of  the  fundamental  rights  of  the 
people,  and  the  example  then  set  has  been  followed  by  the 
newer  States,  and,  indeed,  by  the  States  generally  in  their  most 
recent  Constitutions.  Considering  that  all  danger  from  the 
exercise  of  despotic  power  upon  the  people  of  the  States  by  the 
executive  has  long  since  vanished,  their  executive  authorities 
being  the  creatures  of  popular  vote  and  nowadays  rather  too 
weak  than  too  strong,  it  may  excite  surprise  that  these  assertions 
of  the  rights  and  immunities  of  the  individual  citizen  as  against 
the  government  should  continue  to  be  repeated  in  the  instru- 
ments of  to-day.  A  reason  may  be  found  in  the  remarkable  con- 
stitutional conservatism  of  the  Americans,  and  in  their  fondness 
for  the  enunciation  of  the  general  maxims  of  political  freedom. 
But  it  is  also  argued  that  these  declarations  of  principle  have 
a  practical  value,  as  asserting  the  rights  of  individuals  and  of 
minorities  against  arbitrary  conduct  by  a  majority  in  the 
legislature,  which  might,  in  the  absence  of  such  provisions,  be 
tempted  at  moments  of  excitement  to  suspend  the  ordinary 
law  and  arm  the  magistrates  with  excessive  powers.  They  are 
therefore,  it  is  held,  still  safeguards  against  tyranny  ;  and  they 
serve  the  purpose  of  solemnly  reminding  a  State  legislature 
and  its  officers  of  those  fundamental  principles  which  they 
ought  never  to  overstep.^  Although  such  provisions  certainly 
do  restrain  a  legislature  in  ways  which  the  British  Parliament 
would  find  inconvenient,  few  complaints  of  practical  evils 
thence  arising  are  heard. 

A  general  notion  of  these  Bills  of  Rights  may  be  gathered 
from  that  enacted  for  itself  in  1879  by  the  State  of  California, 
printed  in  the  Appendix  to  this  volume.  I  may  mention,  in  ad- 
dition, a  few  curious  provisions  which  occur  in  some  of  them. 

All  provide  for  full  freedom  of  religious  opinion  and  wor- 

1  The  influence  of  the  Declaration  of  Independence  of  177G  is  of  course  per- 
ceptible in  them  all. 


CHAP.  XXXVII  STATE   CONSTITUTIONS  439 

ship,  and  for  tlie  equality  before  the  law  of  all  religious 
denominations  and  their  members  ;  and  many  forbid  the  estab- 
lishment of  any  particular  church  or  sect,  and  declare  that  no 
public  money  ought  to  be  applied  in  aid  of  any  religious  body 
or  sectarian  institution.^  But  Delaware  holds  it  to  be  "the 
duty  of  all  men  frequently  to  assemble  for  public  worship"; 
and  Vermont  adds  that  "  every  sect  or  denomination  of  Chris- 
tians ought  to  observe  the  Sabbath  or  Lord's  Day."  And 
thirteen  States  declare  that  the  provisions  for  freedom  of  con- 
science are  not  to  be  taken  to  excuse  acts  of  licentiousness,  or 
justify  practices  inconsistent  with  the  peace  and  safety  of  the 
State,^  Mississippi  adding  (1890)  that  they  shall  not  be  con- 
strued to  exclude  the  Bible  from  use  in  schools,  and  Idaho 
denouncing  bigamy  and  polygamy  as  crimes  to  be  made  pun- 
ishable. 

Louisiana  (Constitution  of  1879)  declares  that  "  all  govern- 
ment of  right  originates  with  the  people,  is  founded  on  their 
will  alone,  and  is  instituted  solely  for  the  good  of  the  whole, 
deriving  its  just  powers  from  the  consent  of  the  governed.  Its 
only  legitimate  end  is  to  protect  the  citizen  in  the  enjoyment 
of  life,  libertyj  and  property.  When  it  assumes  other  func- 
tions, it  is  usurpation  and  oppression." 

Thirty-one  States  declare  that  "  all  men  have  a  natural,  in- 
herent, and  inalienable  right  to  enjoy  and  defend  life  and  lib- 
erty " ;  and  all  of  these,  except  the  melancholy  Missouri,  add 
the  "  natural  right  to  pursue  happiness." 

Twenty-two  declare  that  all  men  have  "a  natural  right  to 
acquire,  possess,  and  protect  property." 

Mississippi  and  Louisiana  (Constitutions  of  1868)  provided 
that  "  the  right  of  all  citizens  to  travel  upon  public  convey- 
ances shall  not  be  infringed  upon  nor  in  any  manner  abridged." 
Both  States  have  now  dropped  this  injunction.^ 

1  Not  till  1889,  however,  did  New  Hampshire  strike  out  of  her  Constitution 
of  1792  a  provision  enabling  the  legislature  to  authorize  towns  to  provide  for 
the  support  of  "  public  Protestant  teachers  of  piety,  religion,  and  morality." 

2  In  Arkansas,  Maryland,  Mississippi,  North  Carolina,  South  Carolina,  and 
Texas,  a  man  is  declared  ineligible  for  office  if  he  denies  the  existence  of  God ; 
in  Pennsylvania  and  Tennessee  he  is  ineligible  if  he  does  not  believe  in  God,  and 
in  the  existence  of  future  rewards  and  punishments.  In  Arkansas  and  Mary- 
land such  a  person  is  also  incompetent  as  a  witness  or  juror. 

3  These  provisions  were  inserted  shortly  after  the  Civil  War  in  order  to  pro- 
tect the  negroes. 


440  THE   STATE   GOVERNMENTS  part  n 

Kentucky  (Constitution  of  1891)  lays  down  that  "absolute 
arbitrary  power  over  the  lives,  liberty,  and  property  of  freemen, 
exists  nowhere  in  a  republic,  not  even  in.  the  largest  majority. 
All  men  when  they  form  a  social  compact  are  equal.  All 
power  is  inherent  in  the  people,  and  all  free  governments  are 
founded  on  their  authority,  and  instituted  for  their  peace, 
safety,  happiness,  and  security,  and  the  protection  of  property. 
For  the  advancement  of  these  ends  they  have  at  all  times  an 
inalienable  and  indefeasible  right  to  alter,  reform,  or  abolish 
their  government  in  such  manner  as  they  may  deem  proper."^ 

All  in  one  form  or  another  secure  the  freedom  of  writing 
and  speaking  opinions,  and  some  add  that  the  truth  of  a  libel 
may  be  given  in  evidence.^ 

Nearly  all  secure  the  freedom  of  public  meeting  and  petition. 
Considering  that  these  are  the  last  rights  likely  to  be  infringed 
by  a  State  government,  it  is  odd  to  find  Florida  in  her  Consti- 
tution of  1886  providing  that  "  the  people  shall  have  the  right 
to  assemble  together  to  consult  for  the  common  good,  to  instruct 
their  representatives,  and  to  petition  the  legislature  for  redress 
of  grievances,"  and  Kentucky  in  1891  equally  concerned  to 
secure  this  right. 

Many  provide  that  no  ex  post  facto  law,  nor  law  impairing 
the  obligation  of  a  contract,  shall  be  passed  by  the  State  legis- 
lature; and  that  private  property  shall  not  be  taken  by  the 
State  without  just  compensation. 

Many  forbid  the  creation  of  any  title  of  nobility. 

Many  declare  that  the  right  of  citizens  to  bear  arms  shall 
never  be  denied,  a  provision  which  might  be  expected  to  prove 
inconvenient  where  it  was  desired  to  check  the  habit  of  carry- 
ing revolvers.  Tennessee  therefore  (Constitution  of  1870)  pru- 
dently adds  that  "  the  legislature  shall  have  power  to  regulate 
the  wearing  of  arms,  with  a  view  to  prevent  crime."  So  also 
Texas,  where  such   a   provision  is  certainly  not   superfluous. 

1  Until  1891,  Kentucky  added,  "  The  right  of  property  is  before  and  higher 
than  any  constitutional  sanction;  and  the  right  of  the  owner  of  a  slave  to 
such  slave  and  its  increase  is  the  same  and  as  inviolable  as  the  right  of  the 
owner  of  any  property  whatever,"  although  this  doctrine  had  been  annulled, 
in  effect,  by  the  thirteenth  amendment  to  the  Federal  Constitution. 

~  A  curious  survival  may  be  noted  in  the  provisions  enabling  the  jury  to 
determine  law  as  well  as  fact  in  libel  cases;  e.g.  Mississippi  (1890)  and  Ken- 
tucky (1891)  in  criminal,  Wyoming  (1889)  also  in  civil  cases. 


CHAP.  XXXVII  STATE   CONSTITUTIONS  441 


And  six  others  ^  allow  the  legislature  to  forbid  the  carrying  of 
concealed  weapons. 

Some  declare  that  the  estates  of  suicides  shall  descend  in 
the  ordinary  course  of  law. 

Most  provide  that  conviction  for  treason  shall  not  work  cor- 
ruption of  blood  nor  forfeiture  of  estate. 

Eight  forbid  white  and  coloured  children  to  be  taught  in  the 
same  public  schools,  while  Wyoming  provides  that  no  distinc- 
tion shall  be  made  in  the  public  schools  on  account  of  sex, 
race,  or  colour. 

Many  declare  the  right  of  trial  by  jury  to  be  inviolate,  even 
while  permitting  the  parties  to  waive  it.  Idaho  empowers  a 
jury  in  civil  cases  to  render  a  verdict  by  a  three-fourths  major- 
ity, and  Wyoming  permits  it  to  consist  of  less  than  twelve. 

Some  forbid  imprisonment  for  debt,  except  in  case  of  fraud, 
and  secure  the  acceptance  of  reasonable  bail,  except  for  the 
gravest  charges.^ 

Several  declare  that  "perpetuities  and  monopolies  are  con- 
trary to  the  genius  of  a  free  State,  and  ought  not  to  be  allowed." 

Many  forbid  the  granting  of  any  hereditary  honours,  privi- 
leges, or  emoluments. 

North  Carolina  declares  that  "as  political  rights  and  privi- 
leges are  not  dependent  upon  or  moditied  by  property,  no  prop- 
erty qualification  ought  to  affect  the  right  to  vote  or  hold 
office";  and  also,  "secret  political  societies  are  dangerous  to 
the  liberties  of  a  free  people,  and  should  not  be  tolerated." 

Massachusetts  sets  forth,  as  befits  a  Puritan  State,  high  moral 
views:  "A  frequent  recurrence  to  the  fundamental  principles 
of  the  Constitution,  and  a  constant  adherence  to  those  of  piety, 
justice,  moderation,  temperance,  industry,  and  frugality,  are 
absolutely  necessary  to  preserve  the  advantages  of  liberty  and  to 
maintain  a  free  government.  The  people  ought  consequently  to 
have  a  particular  attention  to  all  those  principles  in  the  choice 
of  their  officers  and  representatives,  and  they  have  a  right  to 

1  North  Carolina,  Mississippi,  Missouri,  Louisiana,  Colorado,  and  Montana, 
States  in  which  daily  experience  shows  that  the  measures  taken  have  not 
proved  successful. 

2  Mississippi  (Const,  of  1890)  allows  courts  of  justice  to  exclude,  in  some 
classes  of  prosecutions,  persons  not  necessary  for  the  conduct  of  the  trial. 
Wyoming  (1889)  provides  that  no  person  detained  as  a  witness  he  confined  m 
any  room  where  criminals  are  iiuprisoiied. 


442  THE   STATE   GOVERNMENTS 


require  of  their  law-givers  and  magistrates  an  exact  and  con- 
stant observance  of  them." 

South  Dakota  and  Wyoming  provide  that  aliens  shall  have 
the  same  rights  of  property  as  citizens.  Montana  confers  this 
benefit  as  respects  mining  property,  while  Washington  prohibits 
the  ownership  of  land  by  aliens,  except  for  mining  purposes. 
New  York  (Const,  of  1846)  provides:  "All  lands  within  this 
State  are  declared  to  be  allodial,  so  that,  subject  only  to  the 
liability  to  escheat,  the  entire  and  absolute  property  is  vested  in 
the  owners,  according  to  the  nature  of  their  respective  estates." 

North  Dakota  (1889)  enacts:  "Every  citizen  shall  be  free 
to  obtain  employment  wherever  possible,  and  any  person,  cor- 
poration, or  agent  thereof,  maliciously  interfering  or  hindering 
in  anyway  any  citizen  from  obtaining  or  enjoying  employment 
already  obtained  from  any  other  corporation  or  person,  shall  be 
deemed  guilty  of  a  misdemeanor." 

Maryland  (Const,  of  1867)  declares  that  "a  long  continuance 
in  the  executive  departments  of  power  or  trust  is  dangerous  to 
liberty;  a  rotation,  therefore,  in  those  departments  is  one  of  the 
best  securities  of  permanent  freedom."  She  also  pronounces 
all  gifts  for  any  religious  purpose  (except  of  a  piece  of  land 
not  exceeding  five  acres  for  a  place  of  worship,  parsonage,  or 
burying-ground)  to  be  void  unless  sanctioned  by  the  legislature. 

Montana  and  Idaho  declare  the  use  of  lands  for  constructing 
reservoirs,  water-courses,  or  ways  for  the  purposes  of  mining 
or  irrigation,  to  be  a  public  use,  subject  to  State  regulation. 

These  instances,  a  few  out  of  many,  may  suffice  to  show  how 
remote  from  the  common  idea  of  a  Bill  of  Rights,  are  some  of 
the  enactments  which  find  a  place  under  that  heading.  The 
constitution  makers  seem  to  have  inserted  here  such  doctrines 
or  legal  reforms  as  seemed  to  them  matters  of  high  import  or 
of  wide  application,  especially  when  they  could  find  no  suitable 
place  for  them  elsewhere  in  the  instrument. 

Of  the  articles  of  each  State  Constitution  which  contain  the 
frame  of  State  government  it  will  be  more  convenient  to  speak 
in  the  chapters  which  describe  the  mechanism  and  character 
of  the  governments  and  administrative  systems  of  the  several 
States.  I  pass  on  therefore  to  what  have  been  classed  as  the 
Miscellaneous  Provisions.  These  are  of  great  interest  as  reveal- 
ing the  spirit  and  tendencies  of  popular  government  in  America, 


CHAP,  xxxvii  STATE    CONSTITUTIONS  443 

the  economic  and  social  condition  of  the  country,  the  mischiefs 
that  have  arisen,  the  remedies  applied  to  these  mischiefs,  the 
ideas  and  beliefs  of  the  people  in  matters  of  legislation. 

Among  such  provisions  we  find  a  great  deal  of  matter  which 
is  in  no  distinctive  sense  constitutional  law,  but  general  law, 
e.g.  administrative  law,  the  law  of  judicial  procedure,  the  ordi- 
nary private  law  of  family,  inheritance,  contract,  and  so  forth ; 
matter  therefore  which  seems  out  of  place  in  a  constitution 
because  fit  to  be  dealt  with  in  ordinary  statutes.  We  find  mi- 
nute provisions  regarding  the  management  and  liabilities  of 
banking  companies,  of  railways,  or  of  corporations  generally ; 
regulations  as  to  the  salaries  of  officials,  the  quorum  of  courts 
sitting  in  banco,  the  length  of  time  for  appealing,  the  method 
of  changing  the  venue,  the  publication  of  judicial  reports; 
detailed  arrangements  for  school  boards  and  school  taxation 
(with  rules  regarding  the  separation  of  white  and  black  chil- 
dren in  schools),  for  a  department  of  agriculture,  a  canal  board, 
or  a  labour  bureau ;  we  find  a  prohibition  of  lotteries,  of  polyg- 
amy, of  bribery,  of  lobbying,  of  the  granting  of  liquor  licences, 
of  usurious  interest  on  money,  an  abolition  of  the  distinction 
between  sealed  and  unsealed  instruments,  a  declaration  of  the 
extent  of  a  mechanic's  lien  for  work  done.  We  even  find  the 
method  prescribed  in  which  stationery  and  coals  for  the  use  of 
the  legislature  shall  be  contracted  for,  and  provisions  for  fixing 
the  rates  which  may  be  charged  for  the  storage  of  corn  in 
warehouses.  The  framers  of  these  more  recent  constitutions 
have  in  fact  neither  wished  nor  cared  to  draw  a  line  of  distmc- 
tion  between  what  is  proper  for  a  constitution  and  what  ought 
to  be  left  to  be  dealt  with  by  the  State  legislature.  And,  in  the 
case  of  three-fourths  at  least  of  the  States,  no  such  distinction 
now,  in  fact,  exists. 

How  is  this  confusion  to  be  explained  ?  Four  reasons  may 
be  suggested. 

The  Americans,  like  the  English,  have  no  love  for  scientific 
arrangement.  Although  the  Constitutions  have  been  drafted 
by  lawyers,  and  sometimes  by  the  best  lawyers  of  each  State, 
logical  classification  has  not  been  sought  after. 

The  people  found  the  enactment  of  a  new  Constitution  a 
convenient  opportunity  for  enunciating  doctrines  they  valued 
and  carrying  through  reforms  they  desired.     It  was  a  simpler 


444  THE    STATE    GOVERX.MENTS  part  ii 

and  quicker  method  than  waiting  for  legislative  action,  so, 
when  there  was  a  popular  demand  for  the  establishment  of  an 
institution,  or  for  some  legal  change,  this  was  shovelled  into 
the  new  Constitution  and  enacted  accordingly. 

The  peoples  of  the  States  have  come  to  distrust  their  respect- 
ive legislatures.  Hence  they  desire  not  only  to  do  a  thing  forth- 
with and  in  their  own  way  rather  than  leave  it  to  the  chance 
of  legislative  action,  but  to  narrow  as  far  as  they  conveniently 
can  (and  sometimes  farther)  the  sphere  of  the  legislature. 

There  is  an  unmistakable  wish  in  the  minds  of  the  people 
to  act  directly  rather  than  through  their  representatives  in 
legislation.  The  same  conscious  relish  for  power  which  leads 
some  democracies  to  make  their  representatives  mere  delegates, 
finds  a  further  development  in  passing  by  the  representatives, 
and  setting  the  people  itself  to  make  and  repeal  laws. 

Those  who  have  read  the  chapters  describing  the  growth 
and  development  of  the  Federal  Constitution,  will  naturally 
ask  how  far  the  remarks  there  made  apply  to  the  Constitu- 
tions of  the  several  States. 

These  instruments  have  less  capacity  for  expansion,  whether 
by  interpretation  or  by  usage,  than  the  Constitution  of  the 
United  States :  firstly,  because  they  are  more  easily,  and 
therefore  more  frequently,  amended  or  recast ;  secondly,  be- 
cause they  are  far  longer,  and  go  into  much  more  minute  detail. 
The  Federal  Constitution  is  so  brief  and  general  that  custom 
must  fill  up  what  it  has  left  untouched,  and  judicial  construc- 
tion evolve  the  application  of  its  terms  to  cases  they  do  not 
expressly  deal  with.  But  the  later  State  Constitutions  are  so 
full  and  precise  that  they  need  little  in  the  way  of  expansive 
construction,  and  leave  comparatively  little  room  for  the  action 
of  custom. 

The  rules  of  interpretation  are  in  the  main  the  same  as 
those  applied  to  the  Federal  Constitution.  One  important 
difference  must,  however,  be  noted,  springing  from  the  differ- 
ent character  of  the  two  governments.  The  National  Govern- 
ment is  an  artificial  creation,  with  no  powers  except  those 
conferred  by  the  instrument  which  created  it.  A  State  Gov- 
ernment is  a  natural  growth,  which  prima  facie  possesses  all 
the  powers  incident  to  any  government  whatever.  Hence,  if 
the  question  arises  whether  a  State  legislature  can  pass  a  law 


CHAP.  XXXVII  STATE   CONSTITUTIONS  445 

on  a  given  subject,  the  presumption  is  that  it  can  do  so :  and 
positive  grounds  must  be  adduced  to  prove  that  it  cannot.  It 
may  be  restrained  by  some  inhibition  either  in  the  Federal  Con- 
stitution, or  in  the  Constitution  of  its  own  State.  But  such 
inhibition  must  be  affirmatively  shown  to  have  been  imposed, 
or,  to  put  the  same  point  in  other  words,  a  State  Constitution 
is  held  to  be,  not  a  document  conferring  defined  and  specified 
powers  on  the  legislature,  but  one  regulating  and  limiting  that 
general  authority  which  the  representatives  of  the  people 
enjoy  ipso  jure  by  their  organization  into  a  legislative  body. 

"  It  has  never  been  questioned  that  the  American  legislatures 
have  tlie  same  unlimited  power  in  regard  to  legislation  which 
resides  in  the  British  Parliament,  except  where  they  are  re- 
strained bj'-  written  Constitutions.  That  must  be  conceded  to 
be  a  fundamental  principle  in  the  political  organization  of  the 
American  States.  We  cannot  well  comprehend  how,  upon  prin- 
ciple, it  could  be  otherwise.  The  people  must,  of  course,  pos- 
sess all  legislative  poAver  originally.  They  have  committed  this 
in  the  most  general  and  unlimited  manner  to  the  several  State 
legislatures,  saving  only  such  restrictions  as  are  imposed  by  the 
Constitution  of  the  United  States  or  of  the  particular  State  in 
question."  ^ 

"The  people,  in  framing  the  Constitution,  committed  to  the 
legislature  the  whole  law-making  powers  of  the  State  which 
they  did  not  expressly  or  impliedly  withhold.  Plenary  power  in 
the  legislature,  for  all  purposes  of  civil  government,  is  the  rule. 
A  prohibition  to  exercise  a  particular  power  is  an  exception."  ^ 

It  must  not,  however,  be  supposed  from  these  dicta  that  even 
if  the  States  were  independent  commonwealths,  the  Federal 
Government  having  disappeared,  their  legislatures  would  enjoy 
anything  approaching  the  omnipotence  of  the  British  Parlia- 
ment, "whose  power  and  jurisdiction  is,"  says  Sir  Edward 
Coke,  "  so  transcendent  and  absolute  that  it  cannot  be  confined, 
either  for  persons  or  causes,  within  any  bounds."  "  All  mis- 
chiefs and  grievances,"  adds  Blackstone,  "  operations  and  rem- 
edies that  transcend  the  ordinary  course  of  the  laws  are  within 
the  reach  of  this  extraordinary  tribunal."     Parliament  being 

1  Redfield,  C.-J.,  in  27  Vermont  Reports,  p.  142,  quoted  by  Cooley,  Consdt. 
Limit.,  p.  108. 

2  Denio,  C.-J.,  in  15  N.  Y.  Reports,  p.  543,  quoted  ibid.  p.  107. 


446  THE   STATE   GOVERNMENTS  part  ii 

absolutely  sovereign,  can  command,  or  extinguish  and  swallow- 
up  tlie  executive  and  the  judiciary,  appropriating  to  itself  their 
functions.  But  in  America,  a  legislature  is  a  legislature  and 
nothing  more.  The  same  instrument  which  creates  it  creates 
also  the  executive  governor  and  the  judges.  They  hold  by 
a  title  as  good  as  its  own.  If  the  legislature  should  pass  a  law 
depriving  the  governor  of  an  executive  function  conferred  by 
the  Constitution,  that  law  would  be  void.  If  the  legislature 
attempted  to  interfere  with  the  jurisdiction  of  the  courts,  their 
action  would  be  even  more  palpably  illegal  and  ineffectual.^ 

The  executive  and  legislative  departments  of  a  State  govern- 
ment have  of  course  the  right  and  duty  of  acting  in  the  first 
instance  on  their  view  of  the  meaning  of  the  Constitution. 
But  the  ultimate  expounder  of  that  meaning  is  the  judiciary; 
and  when  the  courts  of  a  State  have  solemnly  declared  the  true 
construction  of  any  provision  of  the  Constitution,  all  persons 
are  bound  to  regulate  their  conduct  accordingly.  As  was  ob- 
served in  considering  the  functions  of  the  Federal  judiciary 
(Chapter  XXIII.),  this  authority  of  the  American  courts  is  not 
in  the  nature  of  a  political  or  discretionary  power  vested  in 
them ;  it  is  a  necessary  consequence  of  the  existence  of  a  fun- 
damental law  superior  to  any  statute  which  the  legislature  may 
enact,  or  to  any  right  which  a  governor  may  conceive  himself 
to  possess.^     To  quote  the  words  of  an  American  decision  :  — 

"In  exercising  this  high  authority  the  judges  claim  no  judi- 
cial supremacy ;  they  are  only  the  administrators  of  the  public 
will.  If  an  Act  of  the  legislature  is  held  void,  it  is  not  because 
the  judges  have  any  control  over  the  legislative  power,  biit  be- 
cause the  Act  is  forbidden  by  the  Constitution,  and  because  the 

1  It  has,  for  instance,  been  held  that  a  State  legislature  cannot  empower  elec- 
tion boards  to  decide  whether  a  person  has  by  duelling  forfeited  his  right  to 
vote  or  hold  office,  this  inquiry  being  judicial  and  proper  only  for  the  regular 
tribunals  of  the  State.  —  Cooley,  Constit.  Limit.,  p.  112.  Acts  passed  by  legis- 
latures affecting  some  judicial  decision  already  given,  have  repeatedly  been 
held  void  by  the  Courts.  They  would  be  doubly  void  as  also  transgressing  the 
Federal  Constitution. 

"  In  Switzerland,  however,  the  cantonal  courts  have  not,  except  perhaps  in 
Uri,  the  right  to  declare  invalid  a  law  made  by  a  cantonal  legislature,  the  leg- 
islature being  apparently  deemed  the  judge  of  its  own  powers.  A  cantonal  law 
may,  however,  be  quashed,  in  some  cases,  by  the  Federal  Council,  or  pro- 
nounced invalid  by  the  Federal  Court.  See  an  interesting  discussion  of  the 
question  in  Dubs,  Bas  oeffentliche  Recht  der  Schweizerischen  Eidgenossen- 
schaft,  Part  I.  p.  113. 


CHAP.  XXXVII  STATE   CONSTITUTIONS  447 

will  of  the  people,  which  is  therein  declared,  is  paramount  to 
that  of  their  representatives  expressed  in  any  law." 

It  is  a  well-established  rule  that  the  judges  av^II  always  lean 
in  favour  of  the  validity  of  a  legislative  Act ;  that  if  there  be 
a  reasonable  doubt  as  to  the  constitutionality  of  a  statute  they 
will  solve  that  doubt  in  favour  of  the  statute ;  that  where  the 
legislature  has  been  left  a  discretion  they  will  assume  the  dis- 
cretion to  have  been  wisely  exercised ;  that  where  the  construc- 
tion of  a  statute  is  doubtful,  they  will  adopt  such  construction 
as  will  harmonize  with  the  Constitution,  and  enable  it  to  take 
effect.  So  it  has  been  well  observed  that  a  man  might  Avith 
perfect  consistency  argue  as  a  member  of  a  legislature  against 
a  bill  on  the  ground  that  it  is  unconstitutional,  and  after  hav- 
ing been  appointed  a  judge,  might  in  his  judicial  capacity  sus- 
tain its  constitutionality.  Judges  must  not  inquire  into  the 
motives  of  the  legislature,  nor  refuse  to  apply  an  Act  because 
they  may  suspect  that  it  was  obtained  by  fraud  or  corruption, 
still  less  because  they  hold  it  to  be  opposed  to  justice  and 
sound  policy.  "A  court  cannot  declare  a  statute  unconstitu- 
tional and  void  solely  on  the  ground  of  unjust  and  oppressive 
provisions,  or  because  it  is  supposed  to  violate  the  natural, 
social,  or  political  rights  of  the  citizen,  unless  it  can  be  shown 
that  such  injustice  is  prohibited,  or  such  rights  guaranteed  or 
protected,  by  the  Constitution.^  .  .  .  But  when  a  statute  is 
adjudged  to  be  unconstitutional,  it  is  as  if  it  had  never  been. 
Eights  cannot  be  built  up  under  it ;  contracts  which  depend 
upon  it  for  their  consideration  are  void ;  it  constitutes  a  pro- 

1  This  was  not  always  admitted ;  just  as  iu  England  it  was  at  one  time  held 
that  natural  justice  and  equity  were  above  Acts  of  Parliament.  So  in  the  case 
of  Gardner  v.  The  Villacje  of  jVeivburr/  (Johnson's  Chanceri/  Jieports,  N.  Y. 
162),  the  New  York  legislature  had  authorized  the  village  to  supply  itself  with 
water  from  a  stream,  but  had  made  no  provision  for  indemnifying  the  owners 
of  lands  through  which  the  stream  flowed  for  the  injury  they  must  suffer  from 
the  diversion  of  the  water.  The  Constitution  of  New  York  at  that  time  con- 
tained no  provision  prohibiting  the  taking  of  private  property  for  public  use 
without  compensation ;  notwithstanding  this,  Chancellor  Kent  restrained  the 
village  from  proceeding  upon  the  broad  general  principle  which  he  found  iu 
Magna  Charta,  in  a  statutory  Bill  of  Rights,  which  of  course  could  not  control 
the  legislature,  and  in  Grotius  Puff(>ndorf  and  Bynkershoek.  (I  owe  this 
reference  to  the  kindness  of  Mr.  Theodore  Bacon.) 

As  the  doctrine  stated  in  the  text  has  been  doubted  by  some  critics,  I  may 
now  (Sept.  1892)  refer  for  further  confirmation  of  it  to  Dash  v.  Van  Kleech,  7 
Johns.  477  (words  of  Chancellor  Kent),  and  People  v.  Gillson,  109  N.  Y.  398. 


448  THE   STATE   GOVERNMENTS  pakt  ii 

tection  to  no  one  who  has  acted  under  it ;  and  no  one  can 
be  punished  for  having  refused  obedience  to  it  before  the 
decision  was  made.  And  what  is  true  of  an  Act  void  in  toto, 
is  true  also  as  to  any  part  of  an  Act  which  is  found  to  be 
unconstitutional,  and  which  consequently  is  to  be  regarded  as 
having  never  at  any  time  been  possessed  of  legal  force."  ^ 

It  may  be  thought,  and  the  impression  will  be  confirmed 
when  we  consider  as  well  the  minuteness  of  the  State  Con- 
stitutions as  the  profusion  of  State  legislation  and  the  incon- 
siderate haste  with  which  it  is  passed,  that  as  the  risk  of  a 
conflict  between  the  Constitution  and  statutes  is  great,  so  the 
inconveniences  of  a  system  under  which  the  citizens  cannot  tell 
whether  their  obedience  is  or  is  not  due  to  a  statute  must  be 
serious.  How  is  a  man  to  know  whether  he  has  really  ac- 
quired a  right  under  a  statute?  how  is  he  to  learn  whether 
to  conform  his  conduct  to  it  or  not  ?  How  is  an  investor  to 
judge  if  he  may  safely  lend  money  which  a  statute  has  em- 
powered a  community  to  borrow,  when  the  statute  may  be 
itself  subsequently  overthrown? 

To  meet  these  difficulties  some  State  Constitutions  ^  provide 
that  the  judges  of  the  supreme  court  of  the  State  may  be 
called  upon  by  the  governor  or  either  house  of  the  legislature 
to  deliver  their  opinions  upon  questions  of  law,  without  wait- 
ing for  these  questions  to  arise  and  be  determined  in  an  ordi- 
nary lawsuit.^    This  expedient  seems  a  good  one,  for  it  procures 

.    1  Cooley,  Constit.  Limit.,  pp.  200,  227. 

2  Massachusetts,  Maine,  New  Hampshire,  Rhode  Island,  Colorado,  Florida, 
and  South  Dakota.  In  Vermont  a  similar  power  is  given  hy  statute.  In  South 
Dakota  the  governor  may  require  it  "  upon  important  questions  of  law  involv- 
ing the  exercise  of  his  executive  powers  and  upon  solemn  occasions."  In 
Florida  it  is  ouly  the  governor  to  whom  the  power  has  been  given,  and  whereas 
under  the  Constitution  of  18G8  he  could  obtain  the  opinion  of  the  justices 
"upon  any  point  of  law,"  he  can  by  the  Constitution  of  1886  require  it  only 
"upon  any  question  affecting  his  executive  powers  and  duties."  A  similar 
provision  was  inserted  in  the  Constitution  of  Missouri  of  1865,  but  omitted  in 
the  revised  (and  now  operative)  Constitution  of  1875,  apparently  because  the 
judges  had  so  often  refused  to  give  their  advice  when  asked  for  it  by  a  house 
of  the  legislature,  that  there  seemed  little  use  in  retaining  the  enactment.  In 
the  other  States  the  judges  have  apparently  always  consented  to  answer,  save 
on  one  or  two  occasions  in  Massachusetts.  See  on  the  whole  subject  an  inter- 
esting pamphlet  by  Mr.  J.  B.  Thayer,  of  the  Harvard  University  Law  School. 

3  The  judges  of  the  supreme  court  of  Massachusetts  suggest  in  their  very 
learned  and  instructive  opinion,  delivered  to  the  legislature,  December  31, 1878, 
that  this  provision,  which  appears  first  in  the  Massachusetts  Constitution  of 


CHAP.  XXXVII  STATE   CONSTITUTIONS  449 

a  judicial  and  non-partisan  interpretation,  and  procures  it  at 
once  before  rights  or  interests  have  been  created.  But  it  is 
open  to  the  objection  that  the  opinions  so  pronounced  are 
given  before  cases  have  arisen  whicli  show  how  in  fact  a  stat- 
ute is  working,  and  what  points  it  may  raise;  and  that  the 
judges  have  not,  as  in  contested  lawsuits,  the  assistance  of 
counsel  arguing  for  their  respective  clients.  And  this  is  per- 
haps the  reason  why  in  most  of  the  States  where  the  provision 
exists,  the  judges  have  declared  that  they  act  under  it  in  a 
purely  advisory  capacity,  and  that  their  deliverances  are  mere 
expressions  of  opinion,  not  binding  upon  them  should  the  point 
afterwards  arise  in  a  suit  involving  the  rights  of  parties.^ 

The  highest  court  of  a  State  may  depart  from  a  view  it  has 
previously  laid  down,  even  in  a  legal  proceeding,  regarding  the 
construction  of  the  Constitution,  that  is  to  say,  it  has  a  legal 
right  to  do  so  if  convinced  that  the  former  view  was  wrong. 
But  it  is  reluctant  to  do  so,  because  such  a  course  unsettles  the 
law  and  impairs  the  respect  felt  for  the  bench.  And  there  is 
less  occasion  for  it  to  do  so  than  in  the  parallel  case  of  the  su- 
preme Federal  court,  because  as  the  process  of  amending  a 
State  Constitution  is  simpler  and  speedier  than  that  of  alter- 
ing the  Federal  Constitution,  a  remedy  can  be  more  easily 
applied  to  any  mistake  which  the  State  judiciary  has  com- 
mitted. This  unwillingness  to  unsettle  the  law  goes  so  far 
that  State  courts  have  sometimes  refused  to  disturb  a  practice 
long  acquiesced  in  by  the  legislature,  which  they  have  never- 
theless declared  they  would  have  pronounced  unconstitutional 
had  it  come  before  them  while  still  new. 

1780,  and  was  doubtless  borrowed  thence  by  the  other  States,  "  evidently  had 
in  view  the  usage  of  the  English  Constitution,  by  which  the  King  as  well  as 
the  House  of  Lords,  whether  acting  in  their  judicial  or  in  their  legislative 
capacity,  had  the  right  to  demand  the  opinion  of  the  twelve  judges  of  Eng- 
land." This  is  still  sometimes  done  by  the  House  of  Lords  acting  in  their 
judicial  capacity;  but  the  opinions  of  tlie  judges  so  given  are  not  necessarily 
followed  by  that  House,  and  though  always  reported  are  not  deemed  to  be 
binding  pronouncements  of  law  similar  to  the  decisions  of  a  court. 

1  Mr.  Thayer  shows,  by  an  examination  of  the  reported  instances,  that  in 
Massachusetts,  New  Hampshire,  and  Rhode  Lsland,  as  also  in  Missouri  from 
1865  to  1875,  the  courts  held  that  their  opinions  rendered  under  these  provisions 
of  the  State  Constitutions  were  not  to  be  deemed  judicial  determinations, 
equal  in  authority  to  decisions  given  in  actual  litigation,  but  were  rather 
prima  facie  impressions,  which  the  judges  ought  not  to  hold  themselves 
bound  by,  when  subsequently  required  to  determine  the  same  point  in  an 
action  or  other  legal  proceeding.  It  is  otherwise  in  INIaine  and  Colorado. 
VOL.  I  -  <j 


CHAPTER  XXXVIII 

THE    DEVELOPMENT    OF    STATE    CONSTITUTIONS 

It  was  observed  in  last  chapter  that  the  State  Constitutions 
furnish  invaluable  materials  for  history.  Their  interest  is  all 
the  greater,  because  the  succession  of  Constitutions  and  amend- 
ments to  Constitutions  from  1776  till  to-day  enables  the  annals 
of  legislation  and  political  sentiment  to  be  read  in  these  docu- 
ments more  easily  and  succinctly  than  in  any  similar  series  of 
laws  in  any  other  country.  They  are  a  mine  of  instruction 
for  the  natural  history  of  democratic  communities.  Their 
fulness  and  minuteness  make  them,  so  to  speak,  more  pictorial 
than  the  Federal  Constitution.  They  tell  us  more  about  the 
actual  methods  and  conduct  of  the  government  than  it  does. 
If  we  had  similar  materials  concerning  the  history  of  as  many 
Greek  republics  during  the  ages  of  Themistocles  and  Pericles, 
we  could  rewrite  the  history  of  Greece.  Some  things,  how- 
ever, even  these  elaborately  minute  documents  do  not  tell  us. 
No  one  could  gather  from  them  what  were  the  modes  of  doing 
business  in  the  State  legislatures,  and  how  great  a  part  the 
system  of  committees  plays  there.  No  one  could  learn  what 
manner  of  men  constitute  those  bodies  and  determine  their 
character.  No  one  would  know  that  the  whole  machinery  is 
worked  by  a  restlessly  active  party  organization.  Nevertheless 
they  are  so  instructive  as  records  of  past  movements,  and  as  an 
index  to  the  present  tendencies  of  American  democracy,  that 
I  heartily  regret  that  the  space  at  my  disposal  permits  me  to 
make  only  a  sparing  use  of  the  materials  which  I  gathered 
during  many  months  spent  in  studying  the  one  hundred  and 
thirteen  Constitutions  enacted  since  the  Declaration  of  Inde- 
pendence.^ 

1 1  venture  again  to  commend  the  study  of  these  constitutions  to  the  philo- 
sophic inquirer  into  what  ifiay  be  called  the  science  of  comparative  politics. 
450 


CHAP.  XXXVIII     DEVELOPMENT   OF   CONSTITUTIONS  451 

Three  periods  may  be  distinguished  in  the  development  of 
State  Governments  as  set  forth  in  the  Constitutions,  each  period 
marked  by  an  increase  in  the  length  and  minuteness  of  those 
instruments. 

The  first  period  covers  about  thirty  years  from  1776  down- 
wards, and  includes  the  earlier  Constitutions  of  the  original 
thirteen  States,  as  well  as  of  Kentucky,  Vermont,  Tennessee, 
and  Ohio. 

Most  of  these  Constitutions  were  framed  under  the  impres- 
sions of  the  Eevolutionary  War.  They  manifest  a  dread  of 
executive  power  and  of  military  power,  together  with  a  dis- 
position to  leave  everything  to  the  legislature,  as  being  the 
authority  directly  springing  from  the  people.  The  election  of 
a  State  governor  is  in  most  States  vested  in  the  legislature. 
He  is  nominally  assisted,  but  in  reality  checked,  by  a  council 
not  of  his  own  choosing.  He  has  not  (except  in  Massachu- 
setts) a  veto  on  the  Acts  of  the  legislature.^  He  has  not,  like 
the  royal  governors  of  colonial  days,  the  right  of  adjourning 
or  dissolving  it.  The  idea  of  giving  power  to  the  people 
directly  has  •  scarcely  appeared,  because  the  legislature  is  con- 
ceived as  the  natural  and  necessary  organ  of  popular  govern- 
ment, much  as  the  House  of  Commons  is  in  England.  And 
hence  many  of  these  early  Constitutions  consist  of  little  beyond 
an  elaborate  Bill  of  Rights  and  a  comparatively  simple  outline 
of  a  frame  of  government,  establishing  a  representative  legis- 
lature,^ with  a  few  executive  officers  and  courts  of  justice 
carefully  separated  therefrom. 

The  second  period  covers  the  first  half  of  the  present  century 

Both  among  the  pre-Revohitionary  charters  and  the  State  constitutions  he  will 
find  matter  full  of  instruction.  Among  the  former  I  may  especially  refer  to  the 
Frame  of  Government  of  Pennsylvania,  1G82  and  1683,  and  to  the  Fundamental 
Constitutions  of  Carolina  of  1G69.  These  last  were  framed  by  John  Locke, 
and  revised  by  the  first  Lord  Shaftesbury.  They  were  found  unsuitable,  were 
only  partially  put  in  force,  and  were  abrogated  by  the  proprietors  m  1693,  but 
they  are  scarcely  less  interesting  to  the  student  of  history  on  that  account. 

1  In  New  York  a  veto  on  Acts  of  the  legislature  was  by  the  first  constitu- 
tion vested  in  the  Government  and  judges  of  tlie  highest  State  court,  acting 
together. 

2  The  wide  powers  of  these  early  legislatures  are  witnessed  to  by  the  fear 
which  prudent  statesmen  entertained  of  their  action.  Madison  said,  in  the 
Constitutional  Convention  of  1787,  "  Experience  proves  a  tendency  in  our  gov- 
ernments to  throw  all  power  into  the  legislative  vortex.  The  executives  of 
the  States  are  little  more  than  ciphers;  the  legislatures  are  omnipotent." 


452  THE   STATE   GOVERNMENTS 


down  to  the  time  when  the  intensity  of  the  party  struggles  over 
slavery  (1850-60)  interrupted  to  some  extent  the  natural  proc- 
esses of  State  development.  It  is  a  period  of  the  democrat- 
ization of  all  institutions,  a  democratization  due  not  only  to 
causes  native  to  American  soil,  such  as  the  supremacy  in 
politics  of  the  generation  who  had  been  boys  during  the  Revo- 
lutionary War,  but  to  the  influence  upon  the  generation  which 
had  then  come  to  manhood  of  French  republican  ideas,  an 
influence  which  declined  after  1805  and  ended  with  1851,  since 
which  time  French  examples  and  ideas  have  counted  for  very 
little.  Such  provisions  for  the  maintenance  of  religious  insti- 
tutions by  the  State  as  had  continued  to  exist  are  now  swept 
away.  The  principle  becomes  established  (in  the  North  and 
West)  that  constitutions  must  be  directly  enacted  by  popular 
vote.  The  choice  of  a  governor  is  taken  from  the  legislature 
to  be  given  to  the  people.  Property  qualifications  are  abol- 
ished,^ and  a  suffrage  practically  universal,  except  that  it  often 
excludes  free  persons  of  colour,  is  introduced.  Even  the  judges 
are  not  spared.  Many  Constitutions  shorten  their  term,  and 
direct  them  to  be  chosen  by  popular  vote.  The  State  has 
emerged  from  the  English  conception  of  a  community  acting 
through  a  ruling  legislature,  for  the  legislature  begins  to  be 
regarded  as  being  only  a  body  of  agents  exercising  delegated 
and  restricted  powers,  and  obliged  to  recur  to  the  sovereign 
people  (by  asking  for  a  constitutional  amendment)  when  it 
seeks  to  extend  these  powers  in  any  particular  direction.  The 
increasing  length  of  the  constitutions  during  this  half  century 
shows  how  the  range  of  the  popular  vote  has  extended,  for  these 
documents  now  contain  a  mass  of  ordinary  law  on  matters  which 
in  the  early  days  would  have  been  left  to  the  legislatures. 

In  the  third  period,  which  begins  from  about  the  time  of  the 
Civil  War,  a  slight  reaction  may  be  discerned,  not  against 
popular  sovereignty,  which  is  stronger  than  ever,  but  in  the 
tendency  to  strengthen  the  executive  and  judicial  departments. 
The  governor  had  begun  to  receive  in  the  second  period,  and  has 
now  in  every  State  but  four,  a  veto  on  the  acts  of  the  legis- 
lature. His  tenure  of  office  has  been  generally  lengthened; 
the  restrictions  on  his  re-eligibility  generally  removed.     In 

1  Though  Massachusetts  forgot  till  1892  to  abolish  the  property  qualification 
for  her  Governorship. 


CHAP,  xxxviii    DEVELOPMENT  OF  CONSTITUTIONS  453 


many  States  the  judges  have  been  granted  larger  salaries,  and 
their  terms  of  office  lengthened.  Some  constitutions  have 
even  transferred  judicial  appointments  from  the  vote  of  the 
people  to  the  executive.  But  the  most  notable  change  of  all 
has  been  the  narrowing  of  the  competence  of  the  legislature, 
and  the  fettering  its  action  by  complicated  restrictions.  It 
may  seem  that  to  take  powers  away  from  the  legislature  is  to 
give  them  to  the  people,  and  therefore  another  step  towards 
pure  democracy.  But  in  America  this  is  not  so,  because  a 
legislature  always  yields  to  any  popular  clamour,  however 
transient,  while  direct  legislation  by  the  people  involves  delay. 
Such  provisions  are  therefore  conservative  in  their  results,  and 
are  really  checks  imposed  by  the  citizens  upon  themselves. 

This  process  of  development,  which  has  first  exalted  and 

then  depressed  the  legislature,  which  has  extended  the  direct 

interference  of  the  people,  which  has  changed  the  Constitution 

itself  from  a  short  into  a  long,  a  simple  into  a  highly  complex 

document,  has  of  course  not  yet  ended.     Forces  are  already  at 

work  which  will  make  the  constitutions  of  forty  years  hence 

different  from  those  of  to-day.     To  conjecture  the  nature  of 

these  forces  we  must  examine  a   little  further   the  existing 

constitutions  of  the  States,  especially  the  later  among  them  ; 

and  more  particularly  that  remarkable  group  enacted  in  1889 

by  the  six  commonwealths  which  were  admitted  to  the  Union 

in  1889  and  1890.     We  must  also  distinguish  between  different 

types  of  constitution,  corresponding  to  the  different  parts  of  the 

Union  in  which  the  States  that  have  framed  them  are  situate. 

Three  types  were  formerly  distinguishable,  the  old  colonial 

type,  best  seen  in  New  England  and  the  older  middle  States, 

the  Southern  or  Slave  State  type  (in  which  the  influence  of 

the  first  Constitution  of  Virginia  was  noticeable),  and  the  new 

or  Western   type.      At   present    these   distinctions   are   less 

marked.     All  the  Southern  States  have  given  themselves  new 

constitutions  since  the  war ;  and  the  differences  between  these 

and  the  new  constitutions  of  the  North- Western  and  Pacific 

States  are  not  salient.     This  is  because  the  economic  and  social 

changes  produced  by  the  War  of  Secession  and  abolition  of 

slavery  broke  to  pieces  the  old  social  conditions,  and  made 

these  Southern  States  virtually  new  communities  like  those  of 

the  West.     There  is  still,  however,  a  strong  contrast  between 


454  THE   STATE   GOVERNMENTS  part  ii 

the  New  England  States,  to  which  for  this  purpose  we  may- 
add  New  Jersey  and  Delaware,  whose  present  constitutions 
all  date  from  the  period  between  1780  and  1844,  and  the 
Southern  and  Western  States,  nearly  all  of  whose  constitu- 
tions are  subsequent  to  that  year.  In  these  older  States  the 
power  of  the  executive  is  generally  greater.  The  judges  are 
frequently  named  by  the  governor,  and  not  elected  by  the 
people.  The  electoral  districts  are  not  always  equal.  The 
constitutions  are  not  so  minute,  and  therefore  the  need  of 
recurring  to  the  people  to  change  them  arises  less  frequently. 
Taking  the  newer,  and  especially  the  Western  and  Southern 
Constitutions,  and  remembering  that  each  is  the  work  of  an 
absolutely  independent  body,  which  (subject  to  the  Federal 
Constitution)  can  organize  its  government  and  shape  its  law 
in  any  way  it  pleases,  so  as  to  suit  its  peculiar  conditions  and 
reflect  the  character  of  its  population,  one  is  surprised  to  find 
how  similar  these  newer  instruments  are.  There  is  endless 
variety  in  details,  but  a  singular  agreement  in  essentials.  The 
influences  at  work,  the  tendencies  which  the  constitutions  of 
the  last  forty  years  reveal,  are  evidently  the  same  over  the 
whole  Union.  What  are  the  chief  of  those  tendencies  ?  One 
is  for  the  constitutions  to  grow  longer.  This  is  an  absolutely 
universal  rule.  Virginia,  for  instance,  put  her  first  constitu- 
tion, that  of  1776,  into  four  closely  printed  quarto  pages,  that 
is,  into  about  three  thousand  two  hundred  words. ^  In  1830, 
she  needed  seven  pages ;  in  1850,  eighteen  pages ;  in  1870, 
twenty-two  pages,  or  seventeen  thousand  words.  Texas  has 
doubled  the  length  of  her  constitution  from  sixteen  quarto 
pages  in  1845  to  thirty-four  in  1876.  Pennsylvania  was  con- 
tent in  1776  with  a  document  of  eight  pages,  which  for  those 
times  was  a  long  one ;  she  now  requires  twenty -three.  The 
constitution  of  Illinois  filled  ten  pages  in  1818 ;  in  1870  it  had 
swollen  to  twenty-five.  These  are  fair  examples,  but  the  ex- 
tremes are  marked  by  the  constitution  of  New  Hampshire  of 
1776,  which  was  of  about  six  hundred  words  (not  reckoning 
the  preamble),  and  the  constitutions  of  Missouri  of  1875  and 
of  South  Dakota  of  1889,  which  have  each  more  than  twenty- 
six  thousand  words.      The  new  constitutions  are  longer,  not 

1  The  full  quarto  page  in  Poore's  edition  of  The  Federal  and  State  Constitu- 
tions contains  about  eisfht  hundred  words. 


CHAP,  xxxviii    DEVELOPMENT  OF  CONSTITUTIONS  455 

only  because  new  topics  are  taken  up  and  dealt  with,  but 
because  the  old  topics  are  handled  in  far  greater  detail.  Such 
matters  as  education,  ordinary  private  law,  railroads.  State 
and  municipal  indebtedness,  were  either  untouched  or  lightly 
touched  in  the  earlier  instruments.  The  provisions  regarding 
the  judiciary  and  the  legislature,  particularly  those  restricting 
the  power  of  the  latter,  have  grown  far  more  minute  of  late 
years,  as  abuses  of  power  became  more  frequent,  and  the 
respect  for  legislative  authority  less.  As  the  powers  of  a 
State  legislature  are  prima  facie  unlimited,  these  bodies  can 
be  restrained  only  by  enumerating  the  matters  withdrawn 
from  their  competence,  and  the  list  grows  always  ampler.  The 
time  might  almost  seem  to  have  come  for  prescribing  that, 
like  Congress,  they  should  be  entitled  to  legislate  on  certain 
enumerated  subjects  only,  and  be  always  required  to  establish 
affirmatively  their  competence  to  deal  with  any  given  topic. 

I  have  already  referred  to  the  progress  which  the  newer  con- 
stitutions show  towards  more  democratic  arrangements.  The 
suffrage  is  now  in  almost  every  State  enjoyed  by  all  adult 
males.  Citizenship  is  quickly  and  easily  accorded  to  immi- 
grants. And,  most  significant  of  all,  the  superior  judges,  who 
were  formerly  named  by  the  governor,  or  chosen  by  the  legis- 
lature, and  who  held  office  during  good  behaviour,  are  now  in 
most  States  elected  by  the  people  for  fixed  terms  of  years.  I 
do  not  ignore  the  strongly-marked  democratic  character  of 
even  the  first  set  of  constitutions,  formed  at  and  just  after  the 
Revolution ;  but  that  character  manifested  itself  chiefly  in 
negative  provisions,  i.e.  in  forbidding  exercises  of  power  by  the 
executive,  in  securing  full  civil  equality  and  the  primordial 
rights  of  the  citizen.  The  new  democratic  spirit  is  positive 
as  well  as  negative.  It  refers  everything  to  the  direct  arbitra- 
ment of  the  people.  It  calls  their  will  into  constant  activity, 
sometimes  by  the  enactment  of  laws  on  various  subjects  in  the 
Constitution,  sometimes  by  prescribing  to  the  legislature  the 
purposes  which  legislation  is  to  aim  at.  Even  the  tendency 
to  support  the  executive  against  the  legislature  is  evidence  not 
so  much  of  respect  for  authority  as  of  the  confidence  of  the 
people  that  the  executive  will  be  the  servant  of  popular  opin- 
ion, prepared  at  its  bidding  to  restrain  that  other  servant  — 
the  legislature  —  who  is  less  trusted,  because  harder  to  fix  with 


456  THE   STATE  GOVERNMENTS  part  n 

responsibility  for  misdoing.  On  the  whole,  therefore,  there 
can  be  no  doubt  that  the  democratic  spirit  is  now  more  ener- 
getic and  pervasive  than  it  was  in  the  first  generation.  It  is 
a  different  kind  of  spirit.  It  is  more  practical,  more  disposed 
to  extend  the  sphere  of  governmental  interference,  less  con- 
tent to  rely  on  general  j^riuciples.  One  discovers  in  the  word- 
ing of  the  most  recent  constitutions  a  decline  of  that  touching 
faith  in  the  efficacy  of  broad  declarations  of  abstract  human 
rights  which  marked  the  disciples  of  Jefferson.  But  if  we 
compare  the  present  with  the  second  or  Jacksonian  age,  it  may 
be  said  that  there  has  been  in  progress  for  some  years  past 
a  certain  anti-democratic  reactioii,  fainter  than  the  levelling 
movement  of  sixty  years  ago,  and  not  likely  to  restore  the  state 
of  things  that  existed  before  that  movement,  yet  noticeable  as 
showing  that  the  people  do  learn  by  experience,  and  are  not 
indisposed  to  reverse  their  action  and  get  clear  of  the  results 
of  past  mistakes.  The  common  saying  that  on  the  road  to 
democracy  there  are  vestigia  nulla  retrorsum  is  not  universally 
true  in  America. 

That  there  are  strong  conservative  tendencies  in  the  United 
States  is  a  doctrine  whose  truth  will  be  illustrated  later  on. 
Meanwhile  it  is  worth  while  to  ask  how  far  the  history  of 
State  constitutions  confirms  the  current  notion  that  democra- 
cies are  fond  of  change.  The  answer  is  instructive,  because 
it  shows  how  flimsy  are  the  generalizations  which  men  often 
indulge  in  when  discussing  forms  of  government,  as  if  all  com- 
munities with  similar  forms  of  government  behaved  in  the 
same  way.  All  the  States  of  the  Union  are  democracies,  and 
democracies  of  nearly  the  same  type.  Yet  while  some  change 
their  constitutions  frequently,  others  scarcely  change  theirs  at 
all.  Let  me  recall  the  reader's  mind  to  the  distinction  already 
drawn  between  the  older  or  New  England  type  and  the  newer 
type,  which  we  find  in  the  Southern  as  well  as  the  Western 
States.  It  is  among  the  latter  that  changes  are  frequent. 
Louisiana,  for  instance,  whose  State  life  began  in  1812,  has 
had  six  complete  new  constitutions,  without  counting  the  so- 
called  Secession  Constitution  of  1861.  So  has  Georgia.  Ar- 
kansas, which  dates  from  1836,  has  had  five,  besides  many 
amendments  passed  in  the  intervals.  Virginia  and  South 
Carolina  (both  original  States)  have  had  five  each.     Among 


CHAP.  XXXVIII     DEVELOPMENT   OF   CONSTITUTIONS  457 

the  Northern  States,  Pennsylvania  (an  original  State)  has  had 
four ;  Illinois,  dating  from  1818,  three ;  New  York,  three  ; 
Delaware,  three;  whereas  Connecticut  and  Rhode  Island 
(both  original  States)  and  Maine  (dating  from  1820),  have 
had  only  one  each,  Vermont  and  New  Hampshire  two  each. 
Massachusetts  still  lives  under  her  Constitution  of  1780,  which 
has  indeed  been  amended  at  various  dates,  yet  not  to  such  an 
extent  as  to  efface  its  original  features.  Of  the  causes  of  these 
differences  I  will  now  touch  on  two  only.  One  is  the  attach- 
ment which  in  an  old  and  historic,  a  civilized  and  well-edu- 
cated community,  binds  the  people  to  their  accustomed  usages 
and  forms  of  government.  It  is  the  newer  States,  without  a 
past  to  revere,  with  a  population  undisciplined  or  fluctuating, 
that  are  prone  to  change.  In  well-settled  commonwealths  the 
longer  a  constitution  has  stood  untouched,  the  longer  it  is 
likely  to  stand,  because  the  force  of  habit  is  on  its  side,  be- 
cause an  intelligent  people  learns  to  value  the  stability  of  its 
institutions,  and  to  love  that  which  it  is  proud  of  having 
created. 

The  other  cause  is  the  difference  between  the  swiftness  with 
which  economic  and  social  changes  move  in  different  parts  of 
the  country.  They  are  the  most  constant  sources  of  political 
change,  and  find  their  natural  expression  in  alterations  of  the 
Constitution.  Such  changes  have  been  least  swift  and  least 
sudden  in  the  New  England  and  Middle  States,  though  in  some 
of  the  latter  the  growth  of  great  cities,  such  as  New  York  and 
Philadelphia,  has  induced  them,  and  induced  therewith  a  ten- 
dency to  amend  the  constitutions  so  as  to  meet  new  conditions 
and  check  new  evils.  They  have  been  most  marked  in  regions 
where  population  and  wealth  have  grown  with  unexampled 
speed,  and  in  those  where  the  extinction  of  slavery  has 
changed  the  industrial  basis  of  society.  Here  lies  the  expla- 
nation of  the  otherwise  singular  fact  that  several  of  the  origi- 
nal States,  such  as  Virginia  and  Georgia,  have  run  through 
many  constitutions.  These  whilom  Slave  States  have  not 
only  changed  greatly  but  changed  suddenly :  society,  as  well 
as  political  life,  was  dislocated  by  the  Civil  War,  and  has  had 
to  make  more  than  one  effort  to  set  itself  right. 

The  total  number  of  distinct  constitutions  adopted  in  1770 
or  enacted  in  the  several  States  since  that  year  —  the  States 


458  THE   STATE   GOVERNMENTS  part  ii 

being  then  13  and  now  44  in  number  —  is  113;  and  to  these 
constitutions  about  240  partial  amendments  have  been  at  dif- 
ferent times  adopted.^  The  period  since  1860  shows  a  some- 
what greater  frequency  of  cliange  than  the  eighty-four  years 
preceding ;  but  that  may  be  accounted  for  by  the  effects  of  the 
war  on  the  Southern  States.  The  average  duration  of  a  con- 
stitution has  been  estimated  at  thirty  years,  and  there  are  now 
six  which  have  lasted  more  than  sixty  years.  Both  whole 
constitutions  and  particular  amendments  are  frequently  re- 
jected by  the  people  when  submitted  to  them  at  the  polls. 
This  befel  six  draft  constitutions  and  more  than  twenty-eight 
amendments  between  1877  and  1887.^ 

Putting  all  these  facts  together,  and  bearing  in  mind  to  how 
large  an  extent  the  constitutions  now,  whether  wisely  or  fool- 
ishly, embody  ordinary  private  and  administrative  law  and 
therefore  invite  amendment,  the  American  democracy  seems 
less  inclined  to  changefulness  and  inconstancy  than  either 
abstract  considerations  or  the  descriptions  of  previous  writers, 
such  as  Tocqueville,  would  have  led  us  to  expect.  The  respect 
for  these  fundamental  instruments  would  no  doubt  be  greater 
if  the  changes  in  them  were  even  fewer,  and  the  changes 
would  be  fewer  if  the  respect  were  greater ;  but  I  see  little 
reason  to  think  that  the  evil  is  increasing. 

A  few  more  observations  on  what  the  Constitutions  disclose 
are  needed  to  complete  this  brief  sketch  of  the  most  instruc- 
tive sources  for  the  history  of  popular  government  which  our 
century  has  produced  —  documents  whose  clauses,  while  they 
attempt  to  solve  the  latest  problems  of  democratic  common- 
wealths, often  recall  the  earliest  efforts  of  our  English  fore- 
fathers to  restrain  the  excesses  of  mediaeval  tyranny. 

The  Constitutions  witness  to  a  singular  distrust  by  the  peo- 
ple of  its  own  agents  and  officers,  not  only  of  the  legislatures 
but  also  of  local  authorities,  as  well  rural  as  urban,  whose 
powers  of  borrowing  or  undertaking  public  works  are  strictly 
limited.  Even  the  judges  are  in  some  States  restrained  in 
their  authority  to  commit  for  contempt  of  court,  and  three 

1  Owing  to  the  absence  of  any  general  official  record,  I  am  at  present  (Nov. 
1892)  unable  to  ascertain  the  exact  number. 

-  Macpherson's  Handbook  mentions  25  constitutional  amendments  as 
adopted  in  the  two  years  from  August  1888  to  July  1890,  and  26  as  rejected. 


CHAP.  XXXVIII     DEVELOPMENT   OF   CONSTITUTIONS  459 

very  recent  constitutions  contain  severe  provisions  against 
abuse  of  his  veto  and  appointing  power  by  the  governor,  and 
against  bribery  offered  to  or  by  him.^ 

They  witness  also  to  a  jealousy  of  the  Federal  government. 
By  most  constitutions  a  Federal  official  is  made  incapable,  not 
only  of  State  office,  but  of  being  a  member  of  a  State  legis- 
lature. These  prohibitions  are  almost  the  only  references  to 
the  National  government  to  be  found  in  the  State  constitutions, 
which  so  far  as  their  terms  go  might  belong  to  independent 
communities.  They  usually  talk  of  corporations  belonging  to 
other  States  as  ''  foreign,"  and  sometimes  try  to  impose  special 
burdens  on  them. 

They  show  a  wholesome  anxiety  to  protect  and  safeguard 
private  property  in  every  way.  The  people's  consciousness  of 
sovereignty  has  not  used  the  opportunity  which  the  enact- 
ment of  a  constitution  gives  to  override  private  rights :  there 
is  rather  a  desire  to  secure  such  rights  from  any  encroach- 
ment by  the  legislature :  witness  the  frequent  provisions 
against  the  taking  of  property  without  due  compensation,  and 
against  the  passing  of  private  or  personal  statutes  which 
could  unfairly  affect  individuals.  The  only  exceptions  to  this 
rule  are  to  be  found  in  the  case  of  anything  approaching  a 
monopoly,  and  in  the  case  of  wealthy  corporations.  But  the 
"  monopolist "  is  regarded  as  the  enemy  of  the  ordinary  citi- 
zen, whom  he  oppresses ;  and  the  corporation  —  it  is  usually 
corporations  that  are  monopolists — is  deemed  not  a  private 
person  at  all,  but  a  sort  of  irresponsible  tyrant  whose  resources 
enable  him  to  overreach  the  law.  Corporations  are  singled 
out  for  special  taxation.  Labour  laws  are  enacted  to  apply 
to  them  only.  A  remarkable  instance  of  this  hostility  to 
monopolies  is  to  be  found  in  the  Constitution  of  Illinois  of 
1870,  with  its  provisions  anent  grain  elevators,  warehouses, 
and  railroads.-  The  newer  constitutions  of  other  Western 
States,  such  as  Wisconsin  and  Texas,  are  not  less  instructive 
in  this  respect.  Nor  is  it  surprising  that  efforts  should  be 
made  in  some  of  the  more  recent  instruments  to  strike  at  the 
combinations  called  "trusts." 

1  Constitutions  of  North  Dakota,  South  Dakota,  and  Wyoming,  all  of  1889. 

2  See  the  remarkable  group  of  cases  beginning  with  Munn  v.  Illinois  (com- 
monly called  the  Granger  Cases)  in  94  U.  S.  Reports,  p.  113. 


460  THE   STATE   GOVERNMENTS  part  ii 

The  extension  of  the  sphere  of  State  interference,  with  the 
corresponding  departure  from  the  doctrine  of  laissez  faire,  is  a 
question  so  large  and  so  interesting  as  to  require  a  chapter  to 
itself  in  my  second  volume.  Here  it  may  suffice  to  remark, 
that  some  departments  of  governmental  action,  which  on  the 
continent  of  Europe  have  long  been  handled  by  the  State,  are 
in  America  still  left  to  private  enterprise.  For  instance,  the 
States  neither  own  nor  manage  railways,  or  telegraphs,  or 
mines,  or  forests,  and  they  sell  their  public  lands  instead  of 
working  them.  There  is,  nevertheless,  visible  in  recent  con- 
stitutions a  strong  tendency  to  extend  the  scope  of  public 
administrative  activity.  Most  of  the  newer  instruments  estab- 
lish not  only  railroad  commissions,  intended  to  control  the 
roads  in  the  interest  of  the  public,  but  also  bureaux  of  agri- 
culture, labour  offices,  mining  commissioners,  land  registration 
offices,  dairy  commissioners,  insurance  commissioners,  and 
agricultural  or  mining  colleges.  And  a  reference  to  the  stat- 
utes passed  within  the  last  few  years  in  the  Western  States 
will  show  that  more  is  being  done  in  this  direction  by  the 
legislatures,  as  exponents  of  popular  sentiment,  than  could  be 
gathered  from  the  older  among  the  Western  constitutions. 

A  spirit  of  humanity  and  tenderness  for  suffering,  very 
characteristic  of  the  American  people,  appears  in  the  direc- 
tions which  many  constitutions  contain  for  the  establishment 
of  charitable  and  reformatory  institutions,  and  for  legislation 
to  protect  children.^  Sometimes  the  legislature  is  enjoined  to 
provide  that  the  prisons  are  made  comfortable ;  or  directions 
are  given  that  homes  or  farms  be  provided  as  asylums  for 
the  aged  and  unfortunate.^  On  the  other  hand,  this  tenderness 
is  qualified  by  the  judicious  severity  which  in  most  States  de- 
bars persons  convicted  of  crime  from  the  electoral  franchise. 
Lotteries  are  stringently  prohibited  by  some  of  the  recent  con- 
stitutions. 

In  the  older  Northern  constitutions,  and  in  nearly  all  the 
more  recent  constitutions  of  all  the  States,  ample  provision  is 
made  for  the  creation  and  maintenance  of  schools.  Even  uni- 
versities are  the  object  of  popular  zeal, 'though  a  zeal  not 

1  So  Kentucky  (Const,  of  1801,  §  243)  and  North  Dakota  (Const,  of  1889, 
§  209)  prohibit  the  labour  of  children  under  twelve. 

2  So  Mississippi  (Const,  of  1890,  §  262). 


CHAP.  XXXVIII     DEVELOPMENT   OF   CONSTITUTIONS  461 

always  according  to  knowledge.  Most  Western  constitutions 
direct  their  establishment  and  support  from  public  funds  or 
land  grants.  Some  of  the  latest  constitutions  contain  signifi- 
cant provisions  intended  to  propitiate  labour.  Thus  Wyoming 
and  Idaho  declare  that  eight  hours  shall  be  a  lawful  day's 
work  on  all  State  and  municipal  works,  Wyoming  adding  "  in 
all  mines."  Many  prohibit  the  letting  out  of  convict  labour; 
several  forbid  the  employment  or  bringing  into  the  State  of 
any  body  of  armed  men,  and  several  prohibit  contracts  by 
which  employers  may  attempt  to  escape  from  liability  for 
accidents  to  their  workpeople.  Mississippi  abolishes  (1890), 
so  far  as  concerns  railroads,  the  established  legal  doctrine  of 
an  employer's  non-liability  for  accidents  caused  to  a  workman 
by  the  fault  of  a  fellow-workman. 

Although  a  Constitution  is  the  fundamental  and  supreme 
law  of  the  State,  one  must  not  conclude  that  its  provisions  are 
any  better  observed  and  enforced  than  those  of  an  ordinary 
statute.  There  is  sometimes  reason  to  suspect  that  when  an 
offence  is  thought  worthy  of  being  specially  mentioned  in  a 
constitution,  this  happens  because  it  is  specially  frequent, 
and  because  men  fear  that  the  legislature  may  shrink  from  ap- 
plying due  severity  to  repress  it,  or  the  public  prosecuting 
authorities  may  wink  at  it.^  Certain  it  is  that  in  many  in- 
stances the  penalties  threatened  by  constitutions  fail  to  attain 
their  object.  For  instance,  the  constitutions  of  most  of  the 
Southern  States  have  for  many  years  past  declared  duellists, 
and  even  persons  who  abet  a  duel  by  carrying  a  challenge, 
incapable  of  office,  or  of  sitting  in  the  legislature.  Yet  the 
practice  of  private  warfare  does  not  seem  to  have  declined 
in  Mississippi,  Texas,  or  Arkansas,  where  these  provisions 
exist.  Virginia  had  such  a  provision  in  her  constitution  of 
1830.  She  repeated  it  in  her  constitution  of  1850,  but  with 
the  addendum,  that  the  disqualification  should  not  attach  to 
those  who  had  offended  previously  —  i.e.  in  violation  of  the 
constitution  of  1830.^     So  far  as  the  enactment  has  had  any 

1  This  is  said  to  happen  in  some  States  as  respects  lotteries. 

2  "  The  General  Assembly  may  provide  that  no  person  shall  be  capable  of 
holding  or  being  elected  to  any  post  of  profit,  trust,  or  emolument,  civil  or 
military,  legislative,  executive,  or  judicial,  under  the  government  of  this  com- 
monwealth who  shall  hereafter  tight  a  duel,  or  send  or  accept  a  challenge  to 
fight  a  duel,  the  probable  issue  of  which  may  be  the  death  of  the  challenger  or 


462  THE   STATE   GOVERNMENTS  part  ii 

effect,  that  effect  would  seem  to  have  been  to  encourage  the  prac- 
tice of  shooting  at  sight,  which  is  neither  morally  nor  socially 
an  improvement  on  duelling,  though  apparently  exempt  from 
these  constitutional  penalties. 

New  York  has  been  so  much  exercised  on  the  subject  of 
bribery  and  corruption,  as  to  declare  (amendments  of  1874), 
not  only  that  every  member  of  the  legislature  and  every  officer 
shall  take  an  oath  that  he  has  given  nothing  as  a  consideration 
for  any  vote  received  for  him  (amendment  to  Art.  xii.  §  1), 
and  that  the  legislature  shall  pass  laws  excluding  from  the 
suffrage  all  persons  convicted  of  bribery  or  of  any  infamous 
crime  (amendment  to  Art.  ii.  §  2),  but  also  (amendment  to 
Art.  XV.  §§  1  and  2)  that  the  giving  or  offering  to  or  receiving 
by  an  officer  of  any  bribe  shall  be  a  felony.  The  recent  consti- 
tutions of  North  Dakota,  Montana,  and  Wyoming  declare  log- 
rolling to  be  bribery.  South  Dakota  requires  her  legislators 
and  officers  to  swear  that  they  have  not  received  and  will  not 
receive  a  free  pass  over  a  railroad  for  any  vote  or  influence 
they  may  give,  while  Kentucky  deprives  of  office  (ipso  facto) 
any  legislative  public  officer  or  judge  who  accepts  such  a 
favour.  And  lobbying,  which  is  openly  practised  in  every 
building  where  a  legislature  meets,  is  declared  by  California 
to  be  a  felony,  and  by  Georgia  to  be  a  crime. 

challenged,  or  who  shall  be  second  to  either  party,  or  shall  in  any  manner  aid 
or  assist  in  such  duel,  or  shall  be  knowingly  the  bearer  of  such  challenge  or 
acceptance ;  but  no  person  shall  be  so  disqualified  by  reason  of  his  having 
heretofore  fought  such  duel  or  sent  or  accepted  such  challenge,  or  been  second 
in  such  duel,  or  bearer  of  such  challenge  or  acceptance"  (Constitution  of 
1830,  Art.  iii.  §  12,  repeated  in  Constitution  of  1850,  Art.  iv.  §  17).  In  her 
Constitution  of  1870  Virginia  is  not  content  with  suggesting  to  the  legislature 
to  disqualify  duellists,  but  does  tliis  directly  by  Art.  iii.  §  3.  Seventeen  Con- 
stitutions now  declare  duellists  disqualified  for  office,  and  nine  others  add  a 
disqualification  for  the  franchise.  Nearly  all  are  Southern  and  Western 
States.  Kentucky  (Const,  of  1891)  requires  all  officers,  members  of  the  Gen- 
eral Assembly,  and  persons  being  admitted  to  the  bar  to  take  an  oath  that  they 
have  not  fought  a  duel  since  the  adoption  of  the  Constitution,  nor  aided  any 
person  in  so  offending. 


CHAPTER   XXXIX 

DIRECT    LEGISLATION    BY    THE    PEOPLE 

The  difficulties  and  defects  inherent  in  the  method  of  legis- 
lating by  a  Constitution  are  obvious  enough.  Inasmuch  as 
the  people  cannot  be  expected  to  distinguish  carefully  between 
what  is  and  what  is  not  proper  for  a  fundamental  instrument, 
there  arises  an  inconvenient  as  well  as  unscientific  mixture 
and  confusion  of  private  law^  and  administrative  regulation 
with  the  frame  of  government  and  the  general  doctrines  of 
public  law.  This  mixture,  and  the  practice  of  placing  in  the 
Constitution  directions  to  the  legislature  to  legislate  in  a  cer- 
tain sense,  or  for  certain  purposes,  embarrass  a  legislature  in 
its  working  by  raising  at  every  turn  questions  of  its  compe- 
tence to  legislate,  and  of  the  agreement  between  its  acts  and 
the  directions  contained  in  the  Constitution.  And  as  the  legis- 
lature is  seldom  either  careful  or  well-advised,  there  follows  in 
due  course  an  abundant  crop  of  questions  as  to  the  constitu- 
tionality of  statutes,  alleged  by  those  whom  they  affect  preju- 
dicially in  any  particular  instance  to  be  either  in  substance 
inconsistent  with  the  Constitution,  or  such  as  the  legislatiire 
was  expressly  forbidden  by  it  to  pass.  These  inconveniences 
are  no  doubt  slighter  in  America  than  they  would  be  in  Europe, 
because  the  lawyers  and  the  judges  have  had  so  much  experi- 
ence in  dealing  with  questions  of  constitutional  conflict  and 
ultra  vires  legislation  that  they  now  handle  them  with  amaz- 
ing dexterity.  Still,  they  are  serious,  and  such  as  a  well- 
ordered  government  ought  to  avoid.  The  habit  of  putting 
into  the  Constitution  matters  proper  for  an  ordinary  statute 
has  the  further  disadvantage  that  it  heightens  the  difficulty  of 
correcting  a  mistake  or  supplying  an  omission.  The  process 
of  amending  a  constitution  even  in  one  specific  point  is  a  slow 
one,  to  which  neither  the  legislature,  as  the  proposing  author- 


404  THE    STATE    GOVERNMENTS  part  ii 

ity,  nor  the  people,  as  the  sanctioniBg  authority,  willingly 
resort.  Hence  blemishes  remain  and  are  tolerated,  which  a 
country  possessing,  like  England,  a  sovereign  legislature  would 
correct  in  the  next  session  of  Parliament  without  trouble  or 
delay. 

It  is  sometimes  difficult  to  induce  the  people  to  take  a 
proper  interest  in  the  amendment  of  the  Constitution.  In 
those  States  where  a  majority  of  all  the  qualified  A'oters,  and 
not  merely  of  those  voting,  is  required  to  affirm  an  amend- 
ment, it  often  happens  that  the  requisite  majority  cannot  be 
obtained  owing  to  the  small  number  who  vote.^  This  has  its 
good  side,  for  it  is  a  check  on  hc.sty  or  frequent  change.  But 
it  adds  greatly  to  the  difficulty  of  working  a  rigid  or  supreme 
Constitution,  that  you  may  find  an  admitted,  even  if  not  very 
grave  evil,  to  be  practically  irremovable,  because  the  mass  of 
the  people  cannot  be  induced  to  care  enough  about  the  matter 
to  come  to  the  polls,  and  there  deliver  their  judgment  upon  it. 

These  defects  are  so  obvious  that  we  may  expect  to  find  cor- 
respondingly strong  grounds  for  the  maintenance,  and  indeed 
the  steady  extension  of  the  plan  of  legislating  by  and  through 
a  Constitution.  What  are  these  grounds  ?  Why  do  the 
Americans  tend  more  and  more  to  remove  legislation  from  the 
legislature  and  entrust  it  to  the  people  ? 

One  could  quite  well  imagine  the  several  State  governments 
working  without  fundamental  instruments  to  control  them. 
In  a  Federal  government  which  rests  on,  or  at  least  which 
began  from,  a  compact  between  a  number  of  originally  sepa- 
rate communities,  the  advantages  of  having  the  relations  of 
these  communities  to  one  another  and  to  the  central  authority 
defined  by  an  instrument  placed  beyond  the  reach  of  the  ordi- 
nary legislature,  and  not  susceptible  of  easy  change,  are  clear 
and  strong.  Such  an  instrument  is  the  guarantee  for  the 
rights  of  each  member  placed  above  the  impulses  of  a  chance 
majority.  The  case  is  quite  different  when  we  come  to  a 
single  homogeneous  community.  Each  American  State  might 
now,  if  it  so  pleased,  conduct  its  own  business,  and  govern  its 
citizens  as  a  commonwealth  "  at  common  law,"  with  a  sover- 
eign legislature,  whose  statutes  formed  the  highest  expression 
of  popular  will.     Nor  need  it  do  so  upon  the  cabinet  system 

1  This  happened  more  than  once  of  late  years  in  Kentucky  and  Delaware. 


CHAP,  xixix     DEBECT  LEGISLATIOX  BY  THE  PEOPLE  465 


of  the  Britisli  colonies.  It  might  retain  the  separation  from 
the  legislature  of  the  exec-ative  governor,  elected  by  the  peo- 
ple, and  exercising  his  veto  on  their  behalf,  and  yet  dispense 
altogether  with  a  rigid  fundamental  constitution,  being  con- 
tent to  vest  in  its  representatires  and  governor  the  plenitude 
of  its  own  powers.  This,  however,  no  American  State  does,  or 
has  ever  done,  or  is  likely  to  do.  And  the  question  why  it 
does  not  suggests  a  point  of  interest  for  Europeans  as  well  as 
for  Americans. 

In  the  republics  of  the  ancient  world,  where  representative 
assemblies  were  unknown,  legislative  power  rested  with  the 
citizens  meeting  in  what  we  should  now  call  primary  assem- 
blies, such  as  the  Ecclesia  of  Syracuse  or  the  Comitia  of 
Eome.  The  same  plan  prevailed  in  the  early  Teutonic  tribes, 
where  the  assembly  of  the  freemen  exercised  all  such  powers 
as  did  not  belong  to  the  king.  The  laws  of  the  kings  of  the 
Angles  and  Saxons,  the  capitulaxies  of  Charlemagne,  were  pro- 
mulgated in  assemblies  of  the  nation,  and  may  be  said,  though 
emanating  from  the  prince,  to  have  been  enacted  by  the  peo- 
ple. Daring  the  middle  ages,  the  assemblies  died  out,  and  the 
right  of  making  laws  passed  either  to  the  sovereign  or  to  a 
representative  assembly  surrounding  the  sovereign  such  as  the 
English  Parliament,  the  older  scheme  surviving  only  in  such 
primitive  communities  as  some  of  the  Swiss  cantons,  and  the 
tiny  republics  of  Andorra  and  San  Marino.  The  first  reap- 
pearance  in  modem  Europe  of  the  methc-d  of  direct  legislation 
by  the  people  is,  so  fer  as  I  know,  the  provision  of  the  French 
Constitution  framed  by  the  National  Convention  in  1793,  which 
directs  that  any  law  proposed  by  the  legislative  body  shall  be 
published  and  sent  to  all  the  communes  of  the  Eepublie,  whose 
primary  assemblies  shall  be  convoked  to  vote  upon  it,  in  case 
objections  to  it  have  been  raised  by  one-tenth  of  these  primary 
assemblies  in  a  majority  of  the  departments.  In  recent  times 
the  plan  has  become  familiar  by  its  introduction,  not  only  into 
most  of  the  cantons  of  Switzerland,  but  into  the  Swiss  Federal 
Eepublie.  which  constantly  applies  it,  under  the  name  of 
Eeferendum.  by  submitting  to  the  vote  of  the  people  for  ap- 
proval or  rejection  laws  passed  by  the  Federal  legislature.^ 

1  Hie  SttIss  Federal  Constimnon  provides  that  any  Federal  law  and  FedenJ 
resolati<Hi  of  general  s^^plkatioD  and  not  of  an  mgent  character,  most  aa  the 
VOL.  I  2  H 


466  THE   STATE   GOVERNMENTS  part  ii 

In  Britain  the  influence  of  the  same  idea  may  be  discovered 
in  two  phenomena  of  recent  years.  One  is  the  proposal  fre- 
quently made  to  refer  to  the  direct  vote  of  the  inhabitants  of 
a  town  or  other  local  area  the  enactment  of  some  ordinance 
affecting  that  district :  as,  for  instance,  one  determining  whether 
a  rate  shall  be  levied  for  a  free  library,  or  whether  licences 
shall  be  granted  for  the  sale,  within  the  district,  of  intoxicating 
liquors.  This  method  of  deciding  an  issue,  commonly  known 
as  Local  Option,  is  a  species  of  referendum.  It  differs  from 
the  Swiss  form,  not  merely  in  being  locally  restricted,  but 
rather  in  the  fact  that  it  is  put  to  the  people,  not  for  the  sake 
of  confirming  an  Act  of  the  legislature,  but  of  deciding  whether 
a  certain  general  Act  shall  or  shall  not  be  operative  in  a  given 
area.  But  the  principle  is  the  same ;  it  is  a  transference  of  legis- 
lative authority  from  a  representative  body,  whether  the  par- 
liament of  the  nation  or  the  parish  vestry  or  municipal  council 
of  the  town  (as  the  case  may  be),  to  the  voters  at  the  polls. 

The  other  English  illustration  may  seem  far  fetched,  but  on 
examination  will  be  seen  to  involve  the  same  idea.  It  is  now 
beginning  to  be  maintained  as  a  constitutional  doctrine,  that 
when  any  large  measure  of  change  is  carried  through  the 
House  of  Commons,  the  House  of  Lords  has  a  right  to  reject 
it  for  the  purpose  of  compelling  a  dissolution  of  Parliament, 
that  is,  an  appeal  to  the  voters.  The  doctrine  is  as  warmly 
denied  as  it  is  asserted ;  but  the  material  point  is  that  many 
educated  men  contend  that  the  House  of  Commons  is  not 
morally,  though  of  course  it  is  legally,  entitled  to  pass  a  bill 
seriously  changing  the  Constitution,  which  was  not  submitted 
to  the  electors  at  the  preceding  general  election.  A  general 
election,  although  in  form  a  choice  of  particular  persons  as 
members,  has  now  practically  become  an  expression  of  popu- 
lar opinion  on  the  two  or  three  leading  measures  then  pro- 
pounded and  discussed  by  the  party  leaders,  as  well  as  a  vote 
of  confidence  or  no  confidence  in  the  Ministry  of  the  day. 

demand  of  eight  cantons  or  of  30,000  voters  be  submitted  to  popular  vote  for 
acceptance  or  rejection.  This  vote  is  frequently  in  the  negative.  See  Swiss 
Federal  Constitution,  Art.  89;  and  the  remarks  of  M.  Ex-President  Numa 
Droz  in  his  Instruction  civique,  §  172.  In  some  cantons  the  submission 
of  laws  to  popular  vote  is  compulsory.  In  Geneva  it  is  facultatif.  A  refer- 
endum exists  in  every  canton  except  Fribourg  and  the  four  which  retain  a 
Landesgemeinde.    See  S.  Deploige,  Le  Referendum  en  Suisse,  Brussels,  1892. 


CHAP.  XXXIX     DIRECT  LEGISLATION  BY  THE  TEOrLE  467 

It  is  in  substance  a  vote  upon  those  measures ;  although,  of 
course,  a  vote  only  on  their  general  principles,  and  not,  like 
the  Swiss  Eeferendum,  upon  the  statute  which  the  legislature 
has  passed.  Even  therefore  in  a  country  which  clings  to  and 
founds  itself  upon  the  absolute  supremacy  of  its  representative 
chamber,  the  notion  of  a  direct  appeal  to  the  people  has  made 
progress.^ 

In  the  United  States,  which  I  need  hardly  say  has  in  this 
matter  been  nowise  affected  by  France  or  Switzerland  or 
England,  but  has  developed  on  its  own  lines,  the  conception 
that  the  people  (i.e.  the  citizens  at  large)  are  and  ought  of 
right  to  be  the  supreme  legislators,  has  taken  the  form  of 
legislation  by  enacting  or  amending  a  Constitution.  Instead 
of,  like  the  Swiss,  submitting  ordinary  laws  to  the  voters  after 
they  have  passed  the  legislature,  the  Americans  take  subjects 
which  belong  to  ordinary  legislation  out  of  the  category  of 
statutes,  place  them  in  the  Constitution,  and  then  handle  them 
as  parts  of  this  fundamental  instrument.  They  are  not  called 
laws ;  but  laws  they  are  to  all  intents  and  purposes,  differing 
from  statutes  only  in  being  enacted  by  an  authority  which  is 
not  a  constant  but  an  occasional  body,  called  into  action  only 
when  a  Convention  or  a  legislature  lays  propositions  before  it. 

I  have  already  explained  the  historical  origin  of  tliis  s^^stem, 
how  it  sprang  from  the  fact  that  the  Constitutions  of  the 
colonies  having  been  given  to  them  by  an  external  authority 
superior  to  the  colonial  legislature,  the  people  of  each  State, 
seeing  that  they  could  no  longer  obtain  changes  in  their 
Constitution  from  Britain,  assumed  to  themselves  the  right 
and  duty  of  remodelling  it ;  putting  the  collective  citizendom 
of  the  State  into  the  place  of  the  British  Crown  as  sovereign. 
The  business  of  creating  or  remodelling  an  independent  com- 
monwealth was  to  their  thinking  too  great  a  matter  to  be  left 
to  the  ordinary  organs  of  State  life.     This  feeling,  which  had 

1  Much  imi>ortance  has  come  to  be  attached  in  England  to  casual  parlia- 
mentary elections  occurring  when  any  important  measure  is  before  Parliament, 
because  such  an  election  is  taken  to  indicate  the  attitude  of  the  people  gener- 
ally towards  the  measure,  and  by  consequence  the  judgment  they  would  pro- 
nounce were  a  general  election  held.  There  have  l)een  instances  in  which  a 
measure  or  part  of  a  measure  pending  in  Parliament  has  been  dropped,  because 
the  result  of  the  "  by-election  "  was  taken  to  indicate  that  it  displeased  the 
people. 


468  THE   STATE   GOVERNMENTS  part  ii 

begun  to  grow  from  177G  omvards,  was  much  strengthened  by 
the  manner  in  which  tlio  Federal  Constitution  was  enacted  in 
1788  by  State  conventions.  It  seemed  to  have  thus  received 
a  specially  solemn  ratification;  and  even  the  Federal  legis- 
lature, which  henceforth  was  the  centre  of  national  politics, 
was  placed  far  beneath  the  document  which  expressed  the  will 
of  the  people  as  a  whole. 

As  the  republic  went  on  working  out  both  in  theory  and  in 
practice  those  conceptions  of  democracy  and  popular  sover- 
eignty which  had  been  only  vaguely  apprehended  when  enun- 
ciated at  the  Revolution,  the  faith  of  the  average  man  in 
himself  became  stronger,  his  love  of  equality  greater,  his 
desire,  not  only  to  rule,  but  to  rule  directly  in  his  own  proper 
person,  more  constant.  These  sentiments  would  have  told  still 
further  upon  State  governments  had  they  not  found  large 
scope  in  local  government.  However,  even  in  State  affairs 
they  made  it  an  article  of  faith  that  no  Constitution  could 
be  enacted  save  by  the  direct  vote  of  the  citizens ;  and  they 
inclined  the  citizens  to  seize  such  chances  as  occurred  of 
making  laws  for  themselves  in  their  own  way.  Concurrently 
with  the  growth  of  these  tendencies  there  had  been  a  decline 
in  the  quality  of  the  State  legislatures,  and  of  the  legislation 
which  they  turned  out.  They  were  regarded  with  less  respect ; 
they  inspired  less  confidence.  Hence  the  people  had  the 
further  excuse  for  superseding  the  legislature,  that  they  might 
reasonably  fear  it  would  neglect  or  spoil  the  work  they  desired 
to  see  done. 

Instead  of  being  stimulated  by  this  distrust  to  mend  their 
ways  and  recover  their  former  powers,  the  State  legislatures 
fell  in  with  the  tendency,  and  promoted  their  own  superses- 
sion. The  chief  interest  of  their  members,  as  will  be  explained 
later,  is  in  the  passing  of  special  or  local  Acts,  not  of  general 
public  legislation.  They  are  extremely  timid,  easily  swayed  by 
any  active  section  of  opinion,  and  afraid  to  stir  when  placed 
between  the  opposite  fires  of  two  such  sections,  as  for  instance, 
between  the  Prohibitionists  and  the  liquor-sellers.  Hence  they 
welcomed  the  direct  intervention  of  the  people  as  relieving 
them  of  embarrassing  problems.  They  began  to  refer  to  the 
decision  of  a  popu.lar  vote  matters  clearly  within  their  own 
proper  competence,  such  as  the  question  of  liquor  traffic,  or  the 


CHAP.  XXXIX     DIRECT  LEGISLATION  BY  THE  PEOPLE  469 

creation  of  a  system  of  gratuitous  schools.  This  happened  as 
far  back  as  thirty  years  ago.  Presently  they  began  to  wash 
their  hands  by  the  same  device  of  the  troublesome  and  jealousy- 
provoking  question  where  the  capital  of  the  State,  or  its  lead- 
ing public  institutions,  should  be  "  located."  ^  In  New  York, 
the  legislature  having  been  long  distracted  and  perplexed  by 
the  question  whether  articles  made  by  convicts  in  the  State 
prisons  should  be  allowed  to  be  sold,  and  so  to  compete  with 
articles  made  by  private  manufacturers,  recently  resolved  to 
invite  the  opinion  of  the  multitude,  and  accordingly  passed  an 
Act  under  which  the  question  was  voted  on  over  the  whole 
State.  They  could  not  (except  of  course  by  proposing  a  con- 
stitutional amendment)  enable  the  people  to  legislate  on  the 
point ;  for  it  has  been  often  held  by  American  courts  that  the 
legislature,  having  received  a  delegated  power  of  law-making, 
cannot  delegate  that  power  to  any  other  person  or  body.^  But 
they  could  ask  the  people  to  advise  them  how  tliey  should  leg- 
islate ;  and  having  obtained  its  view  in  this  manner,  could 
pass  a  statute  in  conformity  with  its  wishes. 

The  methods  by  which  legislative  power  is  directly  vested  in 
the  American  voters  are  two.  One  is  the  enactment  or  amend- 
ment by  them  of  a  Constitution.  Here  the  likeness  to  the  Swiss 
Referendum  is  close,  because  the  law  to  be  made  is  first  drafted 
and  passed  by  the  convention  or  legislature  (as  the  case  may 
be)  and  then  submitted  to  the  people.  How  wide  the  scope  of 
this  method  is  will  be  realized  by  one  who  has  followed  the 
account  already  given  of  the  number  and  variety  of  the  topics 
dealt  with  by  State  Constitutions. 

The  other  method  is  the  submission  to  popular  vote,  pursu- 
ant to  the  provisions  of  the  Constitution,  of  a  proposal  or  pro- 
posals therein  specified.  If  such  a  proposal  has  been  first 
passed  by  the  legislature,  we  have  here  also  an  instance  of  a 
Eeferendura  in  the  Swiss  sense.  If  however  the  legislature 
have  not  given  their  decision  on  the  proposal,  but  the  popular 

1  This  is  now  the  general  rule  in  new  constitutions.  Washington  provides 
that  though  a  bare  majority  may  settle  where  the  seat  of  State  government 
shall  be,  a  majority  of  two-thirds  sliall  be  required  to  change  it. 

-  According  to  the  maxim  Ddcijata  potcstas  non  delpgatttr,  a  maxim  which 
would  not  apply  in  England,  because  there  Parliament  has  an  origiua  and  not 
a  delegated  authority. 

Judge  Cooley  says:  "  One  of  the  settled  maxims  of  constitutional  law  is  tliat 


470  THE   STATE   GOVERNMENTS  part  n 

vote  at  the  polls  takes  place  in  obedience  to  a  direction  in  that 
behalf  contained  in  the  Constitution,  this  is  not  strictly  a  Ee- 
ferendura,  but  a  case  of  legislation  by  the  people  alone,  as  if 
the  voters  of  the  State  were  all  gathered  in  one  assembly. 

Of  these  two  methods  the  former  needs  no  further  illustration. 
Examples  of  the  second,  in  both  its  forms,  abound  in  the  more 
recent  Constitutions.  So  far  back  as  1843  we  find  Wisconsin 
referring  it  to  the  voters  to  decide  whether  or  no  banks  shall  be 
chartered.^  Minnesota  declares  that  a  certain  class  of  railway 
laws  shall  not  take  effect  unless  submitted  to  and  ratified  by  a 
majority  of  the  electors.  And  she  provides,  by  a  later  amend- 
ment to  her  Constitution,  that  "  ulie  moneys  belonging  to  the 
internal  improvement  land  fund  shall  never  be  appropriated 
for  any  purpose  till  the  enactment  for  that  purpose  shall  have 
been  approved  by  a  majority  of  the  electors  of  the  State,  voting 
at  the  annual  general  election  following  the  passage  of  the 

the  power  conferred  uijoii  the  legislature  to  make  laws  cannot  be  delegated  by 
that  department  to  any  other  body  or  authority.  Where  the  sovereign  power 
of  the  State  has  located  the  authority,  there  it  must  remain ;  and  by  the  con- 
stitutional authority  alone  the  laws  must  be  made  until  the  Constitution  itself 
is  changed.  The  power  to  whose  judgment,  wisdom,  and  patriotism,  his  high 
prerogative  has  been  entrusted  cannot  relieve  itself  of  the  responsibility  by 
choosing  other  agencies  ujion  which  the  power  shall  be  devolved"  (Constit. 
Limit.,  p.  141).  He  quotes  from  Locke  (Civil  Government,  §  142)  the  remark 
that  "  The  legislature  neither  must  nor  can  transfer  the  power  of  making  laws  to 
anybody  else,  or  place  it  anywhere  but  where  the  people  have."  This  is  one  of 
Locke's  "  bounds  set  to  the  legislative  power  of  every  commonwealth  in  every 
form  of  government  "  ;  but  it  has  not  precluded  the  British  Parliament  from 
delegating  large,  and  in  many  cases  truly  legislative,  powers  to  particular 
persons  or  authorities,  such  as  the  Crown  in  Council. 

There  has  been  much  difference  of  oi^iuion  among  American  courts  as  to  the 
extent  to  which  a  legislatui'e  may  refer  the  operation  of  a  general  law  to  popu- 
lar vote  in  a  locality,  but  "  the  clear  weight  of  authority  is  in  support  of  legis- 
lation of  the  nature  commonly  known  as  local  option  laws."  —  Cooley,  ut  supra, 
p.  152 ;  and  see  the  cases  collected  in  his  notes. 

1  Constitution  of  1843,  Art.  xi.  §  5.  —  "The  legislature  may  submit  to  the 
voters  at  any  general  election  the  question  of  '  Bank  or  no  bank?,'  and  if  at 
any  such  election  a  number  of  votes  equal  to  a  majority  of  all  the  votes  cast  at 
such  election  on  that  subject  shall  be  in  favour  of  banks,  then  the  legislature 
shall  have  power  to  grant  bank  charters,  or  to  pass  a  general  banking  law, 
with  such  restrictions  and  under  such  regulations  as  they  may  deem  expedient 
for  the  protection  of  the  bill-holders :  Provided,  that  no  such  grant  or  law 
shall  have  any  force  or  effect  until  the  same  shall  have  been  submitted  to  a 
vote  of  the  electors  of  the  State  at  some  general  election,  and  been  approved 
by  a  majority  of  the  votes  cast  on  that  subject  at  such  election."  Here  the 
question  is  to  come  twice  before  the  people.  See  also  the  Constitutions  of 
Iowa,  Michigan,  Illinois,  Kansas,  Ohio,  and  Missouri. 


CHAP.  XXXIX     DIRECT  LEGISLATION  BY  THE  PEOPLE  471 

Act."  ^  In  this  last  instance  the  referendum  goes  the  length  of 
constituting  the  voters  the  ultimate  financial  authority  for  the 
State,  withdrawing  from  the  legislature  what  might  seem  the 
oldest  and  most  essential  of  its  functions.  So  in  not  a  few  States 
no  debts  beyond  a  certain  specified  amount  may  be  contracted 
except  in  pursuance  of  a  vote  of  the  people :  and  in  others  the 
rate  of  taxation  is  limited  to  a  certain  ratio  to  the  total  valu- 
ation of  the  State,  subject  to  a  power  to  increase  the  same  by 
popular  vote.  And  in  California  no  law  changing  the  seat  of 
the  State  government  is  valid  unless  approved  by  the  jjeople. 

It  is  not  uncommon  for  proposals  submitted  by  the  legis- 
lature in  the  form  of  constitutional  amendments  to  be  rejected 
by  the  people.  Thus  in  Indiana,  Nebraska,  Ohio,  and  Oregon, 
the  legislature  submitted  amendments  extending  the  suffrage 
to  women,  and  the  people  in  all  four  States  refused  the  exten- 
sion. In  Colorado,  where  the  Constitution  of  1876  had  pro- 
vided for  taking  a  special  vote  on  the  point,  the  legislature 
passed  its  woman  franchise  law,  and  laid  it  before  the  people 
in  October  1877,  when  it  was  rejected  by  14,000  votes  to  7400. 
So  West  Virginia  by  her  constitution  of  1872,  and  South 
Dakota  by  hers  of  1889,  submitted  proposals  for  proportional 
representation,  which  failed  of  acceptance. 

The  same  principle  of  popular  vote  has  been  widely  applied 
to  local  as  well  as  to  State  government.  Many  recent  Consti- 
tutions provide  that  the  approval  of  the  people  at  the  polls 
shall  be  needed  in  order  to  validate  a  decision  of  the  city,  or 
county,  or  school  district,  or  township  authority  regarding  bor- 
rowing, or  taxing,  or  lending  public  funds  to  some  enterprise 
it  may  be  desired  to  assist.  Licensing  questions  are  usually 
left  to  popular  determination  alone,  with  no  interference  by 
the  local  representative  authority:  while  as  respects  municipal 
government,  California  has  taken  the  novel  course  of  allowing 
cities  of  more  than  10,000  inhabitants  to  make  their  own  char- 
ters, by  the  action  of  a  drafting  board  of  fifteen  freeholders 
and  a  ratifying  vote  of  the  people,  the  State  legislature  hav- 
ing only  a  veto  on  the  charter  en  bloc.^ 

1  Amendments  of  1871  and  1874  to  the  Constitution  of  1857. 

2  Amendment  of  1887  to  tlie  Constitution  of  California.  Washington  (Const, 
of  1889,  Art.  xi.  §  12),  adopting  a  similar  provision,  restricts  it  to  cities  with  a 
population  of  20,000  or  over,  Ijut  drops  the  requirement  of  approval  by  the 
State  Legislature.  See,  for  specimens  of  popular  vote  provisions  for  local 
areas.  Appendix,  note  to  Chapter  XLIX. 


472  THE   STATE   GOVERNMENTS  part  ii 

What  are  the  practical  advantages  of  this  plan  of  direct 
legislation  by  the  people  ?  Its  demerits  are  obvious.  Besides 
those  I  have  already  stated,  it  tends  to  lower  the  authority  and 
sense  of  responsibility  in  the  legislature  ;  and  it  refers  matters 
needing  much  elucidation  by  debate  to  the  determination  of 
those  who  cannot,  on  account  of  their  numbers,  meet  together 
for  discussion,  and  many  of  whom  may  have  never  thought 
about  the  matter.  These  considerations  will  to  most  Euro- 
peans appear  decisive  against  it.  The  proper  course,  they  will 
say,  is  to  improve  the  legislatures.  The  less  you  trust  them, 
the  worse  they  will  be.  They  may  be  ignorant;  yet  not  so 
ignorant  as  the  masses. 

But  the  improvement  of  the  legislatures  is  just  what  the 
Americans  despair  of,  or,  as  they  prefer  to  say,  have  not 
time  to  attend  to.  Hence  they  fall  back  on  the  direct  popular 
vote  as  the  best  course  available  under  the  circumstances  of 
the  case,  and  in  such  a  world  as  the  present.  They  do  not 
claim  that  it  has  any  great  educative  effect  on  the  people. 
But  they  remark  with  truth  that  the  mass  of  the  people  are 
equal  in  intelligence  and  character  to  the  average  State  legis- 
lator, and  are  exposed  to  fewer  temptations.  The  legislator 
can  be  "  got  at,"  the  people  cannot.  The  personal  interest  of 
the  individual  legislator  in  passing  a  measure  for  chartering 
banks  or  spending  the  internal  improvement  fund  may  be 
greater  than  his  interest  as  one  of  the  community  in  prevent- 
ing bad  laws.  It  will  be  otherwise  with  the  bulk  of  the 
citizens.  The  legislator  may  be  subjected  by  the  advocates  of 
women's  suffrage  or  liquor  prohibition  to  a  pressure  irresistible 
by  ordinary  mortals  ;  but  the  citizens  are  too  numerous  to  be 
all  wheedled  or  threatened.  Hence  they  can  and  do  reject 
proposals  which  the  legislature  has  assented  to.  Nor  should  it 
be  forgotten  that  in  a  country  where  law  depends  for  its  force 
on  the  consent  of  the  governed,  it  is  eminently  desirable  that 
law  should  not  outrun  popular  sentiment,  but  have  the  whole 
weight  of  the  people's  deliverance  behind  it.^ 

1  In  the  case  of  local  oiJtion  there  is  the  further  argument  that  to  commit 
the  question  of  licences  to  a  local  representative  is  virtually  to  make  the  elec- 
tion of  that  authority  turn  upon  this  single  question,  and  that  there  is  an  ad- 
vantage in  making  a  restriction  on  the  freedom  of  the  individual  issue  directly 
from  the  vote  of  the  people,  who  may  feel  themselves  doubly  bound  to  enforce 
what  they  have  directly  enacted. 


CHAP.  XXXIX    DIRECT  LEGISLATION  BY  THE  PEOPLE  473 

A  brilliant,  though  severe,  critic  of  Canadian  institutions* 
deplores  the  want  of  some  similar  arrangement  in  the  several 
Provinces  of  the  Dominion.  Having  remarked  that  the  veto 
of  the  lieutenant-governor  on  the  Acts  of  a  Provincial  legis- 
lature is  in  practice  a  nullity,  and  that  the  central  government 
never  vetoes  such  Acts  except  where  they  are  held  to  exceed 
the  constitutional  comj)etence  of  the  legislature,  he  urges  that 
what  is  needed  to  cure  the  faults  of  Provincial  legislation  is 
to  borrow  the  American  plan  of  submitting  constitutional 
amendments  (and,  he  might  add,  laws)  to  popular  vote.  "  The 
people  cannot  be  lobbied,  wheedled,  or  bull-dozed ;  the  people 
is  not  in  fear  of  its  re-election  if  it  throws  out  something 
supported  by  the  Irish,  the  Prohibitionist,  the  Catholic,  or  the 
Methodist  vote." 

If  the  practice  of  recasting  or  amending  State  Constitutions 
were  to  grow  common,  one  of  the  advantages  of  direct  legis- 
lation by  the  people  woiild  disappear,  for  the  sense  of  per- 
manence would  be  gone,  and  the  same  mutability  which  is 
now  possible  in  ordinary  statutes  would  become  possible  in  the 
provisions  of  the  fundamental  law.  But  this  fault  of  small 
democracies,^  especially  when  ruled  by  primary  assemblies,  is 
unlikely  to  recur  in  large  democracies,  such  as  most  States  have 
now  become,  nor  does  it  seem  to  be  on  the  increase  among 
them.  Reference  to  the  people,  therefore,  acts  as  a  conserva- 
tive force ;  that  is  to  say,  it  is  a  conservative  method  as  com- 
pared with  action  by  the  legislature. 

In  England,  and  indeed  in  most  European  countries,  repre- 
sentative government  has  been  hitherto  an  institution  with 
markedly  conservative  elements,  because  the  legislating  repre- 
sentatives have  generally  belonged  to  the  wealthy  or  well-born 
and  educated  classes,  who,  having  something  to  lose  by  change, 
are  disinclined  to  it,  who  have  been  looked  up  to  by  the  masses, 
and  who  have  been  imperfectly  responsive  to  popular  impulses. 
American  legislatures  have  none  of  these  features.  The  men 
are  not  superior  to  the  multitude,  partly  because  the  multitude 

1  Mr.  Goldwin  Smith. 

2  So  frequent  a  charge  against  the  Greek  republics  and  the  Italian  republics 
of  the  middle  ages,  as  Dante  saj-s,  apostrophizing  Florence  — 

"  Ch'  a  mezzo  Novenibre, 
Non  giunge  quel  che  tu  d'  Ottobre  fili." 


474  THE   STATE   GOVERNMENTS 


is  tolerably  educated  and  tolerably  well  off.  The  multitxide 
does  not  defer  to  them.  They  are  horribly  afraid  of  it,  and 
indeed  of  any  noisy  section  in  it.  They  live  in  the  breath  of 
its  favour;  they  hasten  to  fulfil  its  behests  almost  before  they 
are  uttered.  Accordingly  an  impulse  or  passion  dominant 
among  the  citizens  tells  at  once  on  the  legislature,  and  finds 
expression  in  a  law,  the  only  check  being,  not  the  caution  of  that 
body  and  its  willingness  to  debate  at  length,  but  the  incapacity 
it  often  shows  to  embody  in  a  practical  form  the  wishes  mani- 
fested by  the  people.  Hence  in  the  American  States  repre- 
sentative government  has  by  no  means  that  conservative 
quality  which  Europeans  ascribe  to  it,  whereas  the  direct  vote 
of  the  people  is  the  vote  of  men  who  are  generally  better  in- 
structed than  the  European  masses,  more  experienced  in  poli- 
tics, more  sensible  of  their  interest  in  the  stability  of  the 
country.  If,  therefore,  we  regard  the  referendum  in  its  effect 
upon  the  State  legislature,  we  shall  regard  it  as  being  rather  a 
bit  and  bridle  than  a  spur. 

This  method  of  legislation  by  means  of  a  Constitution  or 
amendments  thereto,  arising  from  sentiments  and  under  con- 
ditions in  many  respects  similar  to  those  which  have  produced 
the  referendum  in  Switzerland,  is  an  interesting  illustration  of 
the  tendency  of  institutions,  like  streams,  to  wear  their  channels 
deeper.  A  historical  accident,  so  to  speak,  suggested  to  the 
Americans  the  subjection  of  their  legislatures  to  a  funda- 
mental law,  and  the  invention  has  been  used  for  other  purposes 
far  more  extensively  than  its  creators  foresaw.  It  is  now,  more- 
over, serviceable  in  a  way  which  those  who  first  used  it  did  not 
contemplate,  though  they  are  well  pleased  with  the  result.  It 
acts  as  a  restraint  not  only  on  the  vices  and  follies  of  legisla- 
tors, but  on  the  people  themselves.  Having  solemnly  bound 
themselves  by  their  Constitution  to  certain  rules  and  principles, 
the  people  come  to  respect  those  principles.  They  have 
parted  with  powers  which  they  might  be  tempted  in  a  moment 
of  excitement,  or  under  the  pressure  of  suffering,  to  abuse 
through  their  too  pliant  representatives;  and  although  they 
can  resume  these  powers  by  enacting  a  new  Constitution  or 
amending  the  old  one,  the  process  of  resumption  requires  time, 
and  involves  steps  which  secure  care  and  deliberation,  while 
allowing  passion  to  cool,  and  the  prospect  of  a  natural  relief 


CHAP.  XXXIX     DIRECT  LEGISLATION  BY  THE  TEOPLE  475 

from  economic  evils  to  appear.  It  lias  been  well  observed  by 
Dr.  von  Hoist  ^  that  the  completeness  and  consistency  with 
which  the  principle  of  direct  sovereignty  of  the  whole  people 
is  carried  out  in  America  has  checked  revolutionary  tendencies, 
by  pointing  out  a  peaceful  and  legal  method  for  the  effecting 
of  political  or  economical  changes,  and  has  fostered  that  dispo- 
sition to  respect  the  decision  of  the  majority  which  is  essential 
to  the  success  of  popular  governments. 

State  Constitutions,  considered  as  laws  drafted  by  a  Con- 
vention and  enacted  by  the  people  at  large,  are  better  both  in 
form  and  substance  than  laws  made  by  the  legislature,  because 
they  are  the  work  of  abler,  or  at  any  rate  of  honester,  men, 
acting  under  a  special  commission  which  imposes  special  re- 
sponsibilities on  them.  The  appointment  of  a  Constitutional 
Convention  excites  general  interest  in  a  State.  Its  functions 
are  weighty,  far  transcending  those  of  the  regular  legislature. 
Hence  some  of  the  best  men  in  the  State  desire  a  seat  in  it, 
and,  in  particular,  eminent  lawyers  become  candidates,  know- 
ing how  much  it  will  affect  the  law  they  practise.  It  is  there- 
fore a  body  superior  in  composition  to  either  the  Senate  or  the 
House  of  a  State.  Its  proceedings  are  followed  with  closer 
attention ;  and  it  is  exempt  from  the  temptations  with  which 
the  power  of  disposing  of  public  funds  bestrews  the  path  of 
ordinary  legislators  ;  its  debates  are  more  instructive;  its  con- 
clusions are  more  carefully  weighed,  because  they  cannot  be 
readily  reversed.^  Or  if  the  work  of  altering  the  constitution 
is  carried  out  by  a  series  of  amendments,  these  are  likely  to  be 
more  fully  considered  by  the  legislature  than  ordinary  statutes 
would  be,  and  to  be  framed  with  more  regard  to  clearness  and 
precision.^ 

In  the  interval  between  the  settlement  by  the  convention  of 
its  draft  constitution,  or  by  the  legislature  of  its  draft  amend- 

1  Constitutional  Law  of  the  United  States,  §  90. 

2  Where  it  is  desired  not  to  complicate  the  acceptance  or  rejection  of  a 
draft  constitution  with  the  enactment  of  some  particular  provision,  that  pro- 
vision is  separately  submitted  to  the  i^eople ;  if  tiiey  approve  it,  it  is  inserted 
in  the  constitution. 

3  There  is  much  controversy  in  America  as  to  whether  the  better  method  of 
reforming  a  constitution  be  to  recast  it  by  a  convention  or  remove  particular 
blemishes  by  a  series  of  amendments.  Probably  the  one  plan  or  the  other  is 
to  be  preferred,  according  to  the  condition  of  public  sentiment  and  the  likeli- 
hood of  securing  a  strong  convention. 


476  THE   STATE    GOVERNMENTS  part  ii 

ments,  and  the  putting  of  the  matter  to  the  vote  of  the  people, 
there  is  copious  discussion  in  the  press  and  at  public  meetings, 
so  that  the  citizens  often  go  well  prepared  to  the  polls.  An 
all-pervading  press  does  the  work  which  speeches  did  in  the 
ancient  republics,  and  the  fact  that  constitutions  and  amend- 
ments so  submitted  are  frequently  rejected,  shows  that  the  peo- 
ple, whether  they  act  wisely  or  not,  do  not  at  any  rate  surrender 
themselves  blindly  to  the  judgment  of  a  convention,  or  obedi- 
ently adopt  the  proposals  of  a  legislature. 

These  merits  are  indeed  not  always  claimable  for  conventions 
and  their  remodelled  constitutions,  much  less  for  individual 
amendments.  The  Constitution  of  California  of  1879  (whereof 
more  in  a  later  chapter)  is  a  striking  instance  to  the  contrary; 
nor  have  the  recent  Conventions  even  of  such  old  States  as 
Mississippi  and  Kentucky  shewn  all  the  judgment  that  the 
problems  before  them  required.  But  a  general  survey  of  this 
branch  of  our  inquiry  leads  to  the  conclusion  that  the  peoples 
of  the  several  States,  in  the  exercise  of  this  their  highest  func- 
tion, show  little  of  that  haste,  that  recklessness,  that  love  of 
change  for  the  sake  of  change,  with  which  European  theorists, 
both  ancient  and  modern,  have  been  wont  to  credit  democracy; 
and  that  the  method  of  direct  legislation  by  the  citizens,  liable 
as  it  doubtless  is  to  abuse,  causes,  in  the  present  condition  of 
the  States,  fewer  evils  than  it  prevents. 

It  would  doubtless  be  better,  if  good  legislatures  were  attain- 
able, to  leave  the  enactment  of  what  are  really  mere  statutes 
to  the  legislature,  instead  of  putting  them  in  a  Constitution, 
But  if  good  legislatures  are  unattainable,  if  it  is  impossible  to 
raise  the  Senate  and  the  House  of  each  State  above  that  low 
level  at  which  (as  we  shall  presently  see)  they  now  stand, 
then  the  system  of  direct  popular  action  may  be  justified  as  a 
salutary  effort  of  the  forces  which  make  for  good  government, 
opening  for  themselves  a  new  channel. 


CHAPTER  XL 

STATE    GOVERNMENTS  :     THE    LEGISLATURE 

The  similarity  of  the  frame  of  government  in  the  forty-four 
republics  which  make  up  the  United  States,  a  similarity  which 
appears  the  more  remarkable  when  we  remember  that  each  of 
these  republics  is  independent  and  self-determined  as  respects 
its  frame  of  government,  is  due  to  the  common  source  whence 
the  governments  flow.  They  are  all  copies,  some  immediate, 
some  mediate,  of  ancient  English  institutions,  viz.  chartered  self- 
governing  corporations,  which,  under  the  influence  of  English 
habits,  and  with  the  precedent  of  the  English  parliamentary 
system  before  their  eyes,  developed  into  governments  resem- 
bling that  of  England  in  the  eighteenth  century.  Each  of  the 
thirteen  colonies  had  up  to  1776  been  regulated  by  a  charter 
from  the  British  Crown,  which,  according  to  the  best  and  oldest 
of  all  English  traditions,  allowed  it  the  practical  management 
of  its  own  affairs.  The  charter  contained  a  sort  of  skeleton 
constitution,  which  usage  had  clothed  with  nerves,  muscles,  and 
sinews,  till  it  became  a  complete  working  system  of  free  govern- 
ment. There  was  in  each  a  governor,  in  two  colonies  chosen 
by  the  people,^  in  the  rest  nominated  by  the  crown  or  the  "  pro- 
prietor"; there  was  a  legislature;  there  were  executive  ofiicers 
acting  under  the  governor's  commission  and  judges  nominated 
by  him ;  there  were  local  self-governing  communities.  In  none, 
however,  did  there  exist  what  we  call  cabinet  government,  i.e. 
the  rule  of  the  legislature  through  a  committee  of  its  own 
members,  coupled  with  the  irresponsibility  of  the  permanent 
nominal  head  of  the  executive.     This  separation  of  the  execu- 

1  However,  in  Rhode  Island  the  governor  was  chosen,  not  as  now  by  the 
people  at  large,  but  by  the  Company  assembled  in  general  court,  a  body  which 
passed  into  the  legislature  of  the  colony.  See  Charter  of  Rhode  Island,  ItiOS. 
In  Connecticut  the  general  court  chose  if  the  people  failed  to  elect,  or  a  sudden 
vacancy  occurred. 

4*7 


478  THE    STATE   GOVERNMENTS  part  ii 

tive  from,  the  legislature,  wliicli  naturally  arose  from  the  fact 
that  the  governor  was  an  officer  directly  responsible  to  another 
power  than  the  colonial  legislature,  viz.  the  British  Crown,  his 
own  master  to  whom  he  stood  or  fell,^  distinguishes  the  old 
colonial  governments  of  North  America  from  those  of  the 
British  colonies  of  the  present  day,  in  all  of  which  cabinet 
government  prevails.^  The  latter  are  copies  of  the  present 
Constitution  of  England ;  the  former  resembled  it  as  it  existed 
in  the  seventeenth  and  beginning  of  the  eighteenth  century 
before  cabinet  government  had  grown  up. 

When  the  thirteen  colonies  became  sovereign  States  at  the 
Eevolution,  they  preserved  this  frame  of  government,  substi- 
tuting a  governor  chosen  by  the  State  for  one  appointed  by  the 
Crown.  As  the  new  States  admitted  to  the  Union  after  1789 
successively  formed  their  constitutions  prior  to  their  admission 
to  the  Union,  each  adopted  the  same  scheme,  its  people  imitat- 
ing, as  was  natural,  the  older  commonwealths  whence  they 
came,  and  whose  working  they  understood  and  admired.^  They 
were  the  more  inclined  to  do  so  because  they  found  in  the  older 
constitutions  that  sharp  separation  of  the  executive,  legisla- 
tive, and  judicial  powers  which  the  political  philosophy  of  those 
days  taught  them  to  regard  as  essential  to  a  free  government, 
and  they  all  take  this  separation  as  their  point  of  departure. 

I  have  observed  in  an  earlier  chapter  that  the  influence  on 
the  framers  of  the  Federal  Constitution  of  the  examples  of  free 
government  which  they  found  in  their  several  States,  had  been 
profound.  We  may  sketch  out  a  sort  of  genealogy  of  Govern- 
ments as  follows :  — 

First.  The  English  incorporated  Company,  a  self-governing 
body,  with  its  governor,  deputy-governor,  and  assistants  chosen 
by  the  freemen  of  the  company,  and  meeting  in  what  is  called 
the  General  Court  or  Assembly. 

1  Even  in  Connecticut  aud  Rhode  Island  the  governor,  though  chosen  by  the 
colony,  was  in  a  sense  responsible  to  the  Crown. 

2  Of  course  in  the  British  self-governing  colonies  the  governor  is  still  re- 
sponsible to  the  Crown,  but  this  responsibility  is  confined  within  narrow  limits 
by  the  responsibility  of  his  ministers  to  the  colonial  legislature  and  by  the  wide 
powers  of  that  le,gislature. 

3  Massachusetts  worked  for  several  years  with  a  small  council  as  the  execu- 
tive power  representing  the  former  Crown  governor,  but  in  1780  she  came  back 
to  the  plan  of  a  single  governor,  while  retaining,  as  she  still  retains,  a  council 
surrounding  him. 


CHAP.  XL  STATE   LEGISLATURES  479 

Next.  The  Colonial  Government,  which  out  of  this  Company 
evolves  a  governor  or  executive  head  and  a  legislature,  consist- 
ing of  representatives  chosen  by  the  citizens  and  meeting  in 
one  or  two  chambers. 

Thirdly.  The  State  Government,  which  is  nothing  but  the 
colonial  government  developed  and  somewhat  democratized, 
with  a  governor  chosen  originally  by  the  legislature,  now 
always  by  the  people  at  large,  and  now  in  all  cases  with  a  leg- 
islature of  two  chambers.  From  the  original  thirteen  States 
this  form  has  spread  over  the  Union  and  prevails  in  every  State. 

Lastly.  The  Federal  Government,  modelled  after  the  State 
Governments,  with  its  President  chosen,  through  electors,  by 
the  people,  its  two-chambered  legislature,  its  judges  named  by 
the  President.-' 

Out  of  such  small  beginnings  have  great  things  grown. 

It  would  be  endless  to  describe  the  minor  differences  in  the 
systems  of  the  forty-four  States.  I  will  sketch  the  outlines 
only,  which,  as  already  observed,  are  in  the  main  the  same 
everywhere. 

Every  State  has  — 

An  executive  elective  head,  the  governor. 

A  number  of  other  administrative  officers. 

A  legislature  of  two  houses. 

A  system  of  courts  of  justice. 

Various  subordinate  local  self-governing  communities,  coun- 
ties, cities,  townships,  villages,  school  districts. 

The  governor  and  the  other  chief  officials  are  not  now  chosen 
by  the  legislature,  as  was  the  case  under  most  of  the  older 
State  Constitutions,  but  by  the  people.  They  are  as  far  as 
possible  disjoined  from  the  legislature.  Neither  the  governor 
nor  any  other  State  official  can  sit  in  a  State  legislature.-  He 
cannot  lead  it.  It  cannot,  except  of  course  by  passing  statutes, 
restrain  him.     There  can  therefore  be  no  question  of  any  gov- 

1  One  might  add  another  generation  at  the  beginning  of  this  genealogy  by- 
deriving  the  English  corjiorate  company  from  the  Roman  collegia,  and  a  gen- 
eration at  the  end  by  observing  how  much  the  constitution  of  modern  Switzer- 
land owes  to  that  of  the  United  States. 

2  In  Rhode  Island,  however,  the  lieutenant-governor  is  a  member  of  the 
Senate,  the  governor  presiding,  but  with  only  a  casting  vote.  AVhen  the  gov- 
ernor is  absent,  the  lieutenant-governor  presides,  and  has  a  casting  TOte  besides 
his  own  vote  as  senator. 


480  THE   STATE   GOVERNMENTS  part  ii 

eminent  by  ministers  wlio  link  the  executive  to  the  legislature 
according  to  the  system  oi'  tlie  free  countries  of  modern  Europe 
and  of  the  British  colonies. 

Of  these  several  powers  it  is  best  to  begin  by  describing  the 
legislature,  because  it  is  by  far  the  strongest  and  most  promi- 
nent. 

An  American  State  legislature  always  consists  of  two  houses, 
the  smaller  called  the  Senate,  the  larger  usually  called  the 
House  of  Kepreseutatives,  though  in  six  States  it  is  entitled 
''  The  Assembly,"  and  in  three  "  The  House  of  Delegates." 
The  origin  of  this  very  interesting  feature  is  to  be  sought 
rather  in  history  than  in  theory.  It  is  due  partly  to  the  fact 
that  in  some  colonies  there  had  existed  a  small  governor's 
council  in  addition  to  the  popular  representative  body,  partly 
to  a  natural  disposition  to  imitate  the  mother  country  with  its 
Lords  and  Commons,  a  disposition  which  manifested  itself 
both  in  colonial  days  and  when  th3  revolting  States  were  giv- 
ing themselves  new  Constitutions,  for  up  to  1776  some  of  the 
colonies  had  gone  on  with  a  legislature  of  one  house  only. 
Now,  however,  the  need  for  two  chambers  is  deemed  an  axiom 
of  political  science,  being  based  on  the  belief  that  the  innate 
tendency  of  an  assembly  to  become  hasty,  tyrannical,  and  cor- 
rupt, needs  to  be  checked  by  the  co-existence  of  another  house 
of  equal  authority.  The  Americans  restrain  their  legislatures 
by  dividing  them,  just  as  the  Romans  restrained  their  execu- 
tive by  substituting  two  consuls  for  one  king.  The  only  States 
that  ever  tried  to  do  with  a  single  house  were  Pennsylvania, 
Georgia,  and  Vermont,  all  of  whom  gave  it  up :  the  first  after 
four  years'  experience,  the  second  after  twelve  years,  the  last 
after  fifty  years.^     It  is  with  these  trifling  exceptions  the  quod 

1  Upon  this  subject  of  the  division  of  the  legislature,  see  Kent's  Commen- 
taries, 1.  208-210  ;  and  Story's  Commentaries  on  the  American  Constitution, 
§§  548-570.  It  deserves  to  be  remarked  that  the  Pennsylvania  Constitution  of 
1786,  the  Georgian  Constitution  of  1777,  and  the  Vermont  Constitutions  of  1786 
and  1793,  all  of  which  constituted  one  house  of  legislature  only,  provided  for  a 
second  body  called  the  Executive  Council,  which  in  Georgia  had  the  duty  of 
examining  bills  sent  to  it  by  the  House  of  Assembly,  and  of  remonstrating 
against  any  provisions  they  disapproved,  and  in  Vermont  was  empowered  to 
submit  to  the  Assembly  amendments  to  bills  sent  up  to  them  by  the  latter, 
and  in  case  the  Assembly  did  not  accept  such  amendments,  to  suspend  the 
passing  of  the  bill  till  the  next  session  of  the  legislature.  In  1789,  Georgia 
abolished  her  Council,  and  divided  her  legislature  into  two  houses;  Pennsyl- 


CHAP.  XL  STATE   LEGISLATURES  481 

semper,  quod  ubique,  quod  ah  omnibus  of  American  constitutional 
doctrine.^ 

Both  houses  are  chosen  by  popular  vote,  generally  ^  in  equal 
electoral  districts,  and  by  the  same  voters,  although  in  a  few 
States  there  are  minor  variations  as  to  modes  of  choice.^  Illi- 
nois by  her  Constitution  of  1870,  and  Michigan  by  a  statute  of 
1889,  create  a  system  of  proportional  representation  by  means 
of  the  cumulative  vote;  i.e.  the  elector  may  cast  as  many  votes 
for  any  one  candidate  as  there  are  representatives  to  be  elected 
in  the  district,  or  may  distribute  his  votes  among  the  candi- 
dates. The  plan  seems  to  give  satisfaction  in  Illinois,  where  the 
northern  counties  (called  Canaan)  have  usually  had  a  Republi- 
can, the  southern  (called  Egypt)  a  Democratic,  majority,  so 
that  there  were  special  reasons  for  breaking  the  party  solidity 
of  each  section. 

vania  did  the  same  in  1790 ;  Vermont  in  183G.  Both  Pennsylvania  and  Vermont' 
had  also  a  body  called  the  Council  of  Censors,  who  may  be  compared  with  the 
NomothetiB  of  Athens,  elected  every  seven  years,  and  charged  with  the  duty 
of  examining  the  laws  of  the  State  and  their  execution,  and  of  suggesting 
amendments.  This  body  was  abolished  in  Pennsylvania  in  1790,  but  lasted  on 
in  Vermont  till  1870.  AH  these  experiments  well  deserve  the  study  of  consti- 
tutional historians. 

1  It  ought  to  be  noted  as  an  illustration  of  the  divergences  between  coun- 
tries both  highly  democratic  that  in  the  cantons  of  Switzerland  the  legislatures 
consist  of  one  chamber  only.  In  most  of  these  cantons  there  is,  to  be  sure,  a 
referendum  and  a  small  executive  council.  Another  remarkable  divergence 
is  that  whereas  in  America,  and  especially  in  the  West,  the  tendency  is  towards 
"  rotation  "  in  office,  in  Switzerland  an  official  and  a  member  of  a  legislature 
is  usually  continued  in  his  post  from  one  term  to  another,  in  fact  is  seldom 
displaced  except  for  some  positive  fault.  At  one  time  officials  were  steadily 
re-elected  in  Connecticut. 

2  In  Connecticut,  every  town  which  had  two  members  in  1874  still  returns 
two,  whatever  its  size,  and  new  towns  obtain  two  members  when  they  reach 
5000.  Thus  42,000  voters  have  l.>3  members  in  the  House,  and  92,000  only  117 
members ;  a  great  many  very  small  places  having  each  two  members.  The 
State  is  virtually  governed  by  the  representatives  of  "  rotten  boroughs,"  and 
as  they  form  the  majority,  they  have  hitherto  refused  to  submit  to  the  people 
a  constitutional  amendment  for  a  redistribution  of  seats  on  the  basis  of  equal 
population.  The  recent  troubles  in  the  State  are  partly  due  to  this  excessive 
difficulty  in  reforming  an  antiquated  Constitution.  In  some  States  there  has 
been  audacious  gerrymandering.  The  Supreme  court  of  Wisconsin  recently 
declared  inconsistent  with  the  Constitution  a  redistricting  of  the  State  which 
had  neglected  county  boundaries  and  created  very  unequal  districts. 

3  Fo"r  instance,  in  Rhode  Island  every  town  or  city,  be  it  great  or  small, 
returns  one  senator ;  and  thus  it  lately  befel  that  a  population  of  253,000  in  13 
cities  and  towns  had  13  senators,  while  23  towns  with  20,000  people  sent  23 
senators.  In  Illinois,  every  district  returns  one  senator  and  three  representa- 
tives. „  T 

VOL.  I  2  1 


482  THE    STATE   GOVERNMENTS  part  ii 

The  following  differences  between  the  rules  governing  the 
two  Houses  are  general :  — 

1.  The  senatorial  electoral  districts  are  always  larger, 
usually  twice  or  thrice  as  large  as  the  House  districts,  and  the 
number  of  senators  is,  of  course,  in  the  same  proportion  smaller 
than  that  of  representatives. 

2.  A  senator  is  usually  chosen  for  a  longer  term  than  a  repre- 
sentative. In  twenty-eight  States  he  sits  for  four  years,  in 
one  (New  Jersey)  for  three,  in  thirteen  for  two,  in  two 
(Massachusetts  and  Ehode  Island)  for  one  year  only ;  the 
usual  term  of  a  representative  being  two  years. 

3.  In  most  cases  the  Senate,  instead  of  being  elected  all  at 
once  like  the  House,  is  only  partially  renewed,  half  its  members 
going  out  "when  their  two,  or  four,  years  have  been  comj^leted, 
and  a  new  half  coming  in.  This  gives  it  a  sense  of  continuity 
which  the  House  wants. 

4.  In  some  States  the  age  at  which  a  man  is  eligible  for  the 
Senate  is  fixed  higher  than  that  for  the  House  of  Representa- 
tives ;  and  in  one  (Delaware)  he  must  own  freehold  land  of 
200  acres  or  real  or  personal  estate  of  the  value  of  £1000 
(Const,  of  1792,  repeated  in  Const,  of  1831).  Other  restric- 
tions on  eligibility,  such  as  the  exclusion  of  clergymen  (which 
still  exists  in  six  States,  and  is  of  old  standing),  that  of  sala- 
ried public  officials  (wliich  exists  everywhere),  that  of  United 
States  officials  and  members  of  Congress,  and  that  of  persons 
not  resident  in  the  electoral  district  (frequent  by  law  and 
practically  universal  by  custom),  apply  to  both  Houses.  In 
some  States  this  last  restriction  goes  so  far  that  a  member 
ceasing  to  reside  in  the  district  for  which  he  was  elected  loses 
his  seat  ipso  facto. 

I  have  dwelt  in  an  earlier  chapter  (Chap.  XIV.)  on  the 
strength  of  this  local  feeling  as  regards  congressional  elections, 
and  on  the  results,  to  a  European  eye  mostly  unfortunate,  which 
it  produces.  It  is  certainly  no  weaker  in  State  elections. 
Nobody  dreams  of  offering  himself  as  a  candidate  for  a  place 
in  which  he  does  not  reside,  even  in  new  States,  where  it  might 
be  thought  that  there  had  .not  been  time  for  local  feeling  to 
spring  up.  Hence  the  educated  and  leisured  residents  of  the 
greater  cities  have  no  chance  of  entering  the  State  legislature 
except  for  the  city  district  wherein  they  dwell ;  and  as  these 


I 


CHAP.  XL  STATE   LEGISLATURES  483 

city  districts  are  those  most  likely  to  be  iu  the  hands  of  some 
noxious  and  selfish  ring  of  professional  politicians,  the  prospect 
for  such  an  aspirant  is  a  dark  one.  Xothing  more  contributes 
to  make  reform  difficult  than  the  inveterate  habit  of  choosing 
residents  only  as  members.  Suppose  an  able  and  public- 
spirited  man  desiring  to  enter  the  Assembly  or  the  Senate  of 
his  State  and  shame  the  offenders  who  are  degrading  or  i^lun- 
dering  it.  He  may  be  wholly  unable  to  find  a  seat,  because  in 
his  place  of  residence  the  party  opposed  to  his  own  may  hold 
a  permanent  majority,  and  he  will  not  be  even  considered  else- 
where. Suppose  a  group  of  earnest  men  who,  knowing  how 
little  one  man  can  effect,  desire  to  enter  the  legislature  at  the 
same  time  and  work  together.  Such  a  group  can  hardly  arise 
except  in  or  near  a  great  city.  It  cannot  effect  an  entrance, 
because  the  city  has  at  best  very  few  seats  to  be  seized,  and 
the  city  men  cannot  offer  themselves  in  any  other  part  of  the 
State.  That  the  restriction  often  rests  on  custom,  not  on  law, 
makes  the  case  more  serious.  A  law  can  be  repealed,  but  cus- 
tom has  to  be  unlearned ;  the  one  may  be  done  in  a  moment 
of  happy  impulse,  the  other  needs  the  teaching  of  long  experi- 
ence applied  to  receptive  minds. 

The  fact  is,"  that  the  Americans  have  ignored  in  all  their 
legislative  as  in  many  of  their  administrative  arrangements, 
the  differences  of  capacity  between  man  and  man.  They 
underrate  the  difficulties  of  government  and  overrate  the  ca- 
pacities of  the  man  of  common  sense.  Great  are  the  bless- 
ings of  equality ;  but  what  follies  are  committed  in  its 
name! 

The  unfortunate  results  of  this  local  sentiment  have  been 
aggravated  by  the  tendency  to  narrow  the  election  areas,  allot- 
ting one  senator  or  representative  to  each  district.  Under  the 
older  Constitution  of  Connecticut,  for  instance,  the  twelve 
senators  were  elected  out  of  the  whole  State  by  a  popular 
vote.  ISTow  (Amdts.  of  a.d.  1828)  the  twenty-four  senators 
are  chosen  by  districts,  and  the  Senate  is  to-day  an  inferior 
body,  because  then  the  best  men  of  the  whole  State  might  be 
chosen,  now  it  is  possible  only  to  get  the  leading  men  of  tlie 
districts.  In  Massachusetts,  under  the  Constitution  of  1780,  the 
senators  were  chosen  by  districts,  but  a  district  might  return 
as  many  as  six  senators  :  the  Assembly  men  were  chosen  by 


484  THE   STATE   GOVERNMENTS  part  u 

towns/  each  corporate  town  having  at  least  one  representative, 
and  more  in  proportion  to  its  population,  the  proportion  being 
at  the  rate  of  one  additional  member  for  every  275  ratable  polls. 
In  1836  the  scale  of  population  to  representatives  was  raised, 
and  a  plan  prescribed  (too  complicated  to  be  here  set  forth) 
under  which  towns  below  the  population  entitling  them  to  one 
representative,  should  have  a  representative  during  a  certain 
number  of  years  out  of  every  ten  years,  the  census  being 
taken  decennially.  Thus  a  small  town  might  send  a  member 
to  the  Assembly  for  five  years  out  of  every  ten,  choosing 
alternate  years,  or  the  first  five,  or  the  last  five,  as  it  pleased. 
Now,  however  (Anidts.  of  a.d.  1857),  the  State  has  been  divided 
into  forty  Senatorial  districts,  each  of  which  returns  one  sena- 
tor only,  and  in  175  Assembly  districts,  returning,  one,  two, 
or,  in  a  few  cases,  three  representatives  each.  The  composition 
of  the  legislature  has  declined  ever  since  this  change  was 
made.  The  area  of  choice  being  smaller,  inferior  men  are 
chosen ;  and  in  the  case  of  the  Assembly  districts  which  re- 
turn one  member,  but  are  composed  of  several  small  towns,  the 
practice  has  grown  up  of  giving  each  town  its  turn,  so  that  not 
even  the  leading  man  of  the  district,  but  the  leading  man  of 
the  particular  small  community  whose  turn  has  come  round, 
is  chosen  to  sit  in  the  Assembly. 

Universal  manhood  suffrage,  subject  to  certain  disqualifica- 
tions in  respect  of  crime  (including  bribery  and  polygamy) 
and  of  the  receipt  of  poor  law  relief,  which  prevail  in  many 
States — in  eight  States  no  pauper  can  vote  —  is  the  rule  in 
nearly  all  the  States.  One  State  (Wyoming,  admitted  in  1890) 
gives  the  suffrage  to  women.  A  property  qualification  was 
formerly  required  in  many,  and  lasted  till  1888  in  Rhode 
Island,  where  the  possession  of  real  estate  valued  at  f  134,  or 
the  payment  of  a  tax  of  at  least  f  1  was  required  from  all 
citizens  not  natives  of  the  United  States.^  Five  other  States 
(Delaware,  Massachusetts,  Pennsylvania,  Tennessee,  and  Mis- 

1  A  town  or  township  means  in  New  England,  and  indeed  generally  in  the 
United  States,  a  small  rural  district,  as  opposed  to  a  city.  It  is  a  community 
which  has  not  received  representative  municipal  government.  —  See  Chapter 
XLVIII.  post. 

2  Rhode  Island,  however,  retains  a  qualification  for  the  purposes  of  voting 
for  certain  financial  officers.  A  good  many  constitutions  forbid  the  imposi- 
tion of  any  property  qualification. 


I 


CHAP.  XL  STATE   LEGISLATURES  485 

sissippi)  require  the  voter  to  have  paid  some  State  or  county 
tax  (Massachusetts  and  Tennessee  call  it  a  poll  tax)";  but  if 
he  does  not  pay  it,  his  party  usually  pay  it  for  him,  so  the 
restriction  is  of  little  practical  importance.  Massachusetts  also 
requires  that  he  shall  be  able  to  read  the  State  Constitution  in 
English,  and  to  write  his  name  (Amdt.  of  1857),  Connecticut, 
that  he  shall  be  able  to  read  any  section  of  the  Constitution  or 
of  the  statutes,  and  shall  sustain  a  good  moral  character  (Amdts. 
of  1855  and  1845).  This  educational  test  is  of  no  great  conse- 
quence, partly,  no  doubt,  because  illiteracy  is  not  high  in 
either  State ;  and  under  the  new  ballot  laws  it  will  scarcely 
be  needed.  In  Massachusetts  it  has  latterly  been  pretty  well 
enforced,  but  for  a  while  the  party  managers  on  both  sides 
agreed  not  to  trouble  voters  about  it.  Mississippi  prescribes 
that  the  person  applying  to  be  registered  "  shall  be  able  to  read 
any  section  of  the  Constitution  or  be  able  to  understand  the 
same  when  read  to  him,  or  give  a  reasonable  interpretation 
thereof"  (Const,  of  1890).^  Certain  terms  of  residence  within 
the  United  States,  in  the  particular  State,  and  in  the  voting 
districts,  are  also  required :  these  vary  greatly  from  State  to 
State,  but  are  usually  short. 

The  suffrage  is  generally  the  same  for  other  purposes  as  for 
that  of  elections  to  the  legislature,  and  is  in  most  States  con- 
fined to  male  inhabitants.  In  a  few  States  women  are  per- 
mitted to  vote  at  school  district  and  in  one  (Kansas)  at  mu- 
nicipal elections,^  and  in  these  no  disability  has  been  imposed 

1  The  reasonable  interpretation  of  this  remarkable  provision  seems  to  be 
that  it  is  intended  to  furnisli  a  peaceful  method  of  excluding  illiterate  negroes 
and  including  illiterate  whites:  a  result  which  has  been  in  fact  attained,  and 
which,  though  it  may  appear  at  variance  with  the  spirit  of  the  fifteenth  amend- 
ment to  the  Federal  Constitution,  is  under  the  circumstances  of  Mississippi 
possibly  not  the  worst  solution  of  a  difficult  problem. 

The  Constitution  of  Colorado,  187(),  allows  its  legislature  to  prescribe  an 
educational  qualification  for  electors,  but  no  such  law  is  to  take  effect  prior  to 
A.D.  1890.  Florida  by  its  Constitution  of  18G8  directed  its  legislature  to  pre- 
scribe such  qualifications,  which,  however,  were  not  to  apply  till  after  1880,  nor 
to  any  person  who  might  then  be  already  a  voter.  (In  the  Constitution  of  1886 
I  find  no  such  provision.)  On  the  other  hand,  the  Constitution  of  Alabama 
forbids  any  educational  qualification  to  be  imposed.  It  is  curious,  yet  easily 
explicabli^  that  one  of  the  least  educated  States  should  prohibit  what  two  of 
the  best  educated  States  expressly  prescribe.  The  safeguard  is  applied  where 
it  is  least,  and  forbidden  where  it  is  most,  needed.  In  Alabama  it  would  have 
excluded  most  of  the  negroes  and  many  of  the  poor  whites. 

2  Minnesota  and  Colorado,  as  well  as  the  Dakotas  and  Montana,  give  the  school 


486  THE   STATE   GOVERNMENTS  part  ii 

upon  married  women ;  nor  has  it  been  attempted,  in  the  various 
constitutional  amendments  framed  to  give  political  suffrage  to 
women,  but  hitherto  always  (except  in  Wyoming)  rejected  by 
the  people,  to  draw  such  a  distinction,  which  would  indeed  be 
abhorrent  to  the  genius  of  American  law. 

It  is  important  to  remember  that,  by  the  Constitution  of  the 
United  States,  the  right  of  suffrage  in  Federal  or  national  elec- 
tions {i.e.  for  presidential  electors  and  members  of  Congress) 
is  in  each  State  that  which  the  State  confers  on  those  who  vote 
at  the  election  of  its  more  numerous  House.  That  the  differ- 
ences which  might  exist  between  one  State  and  another  in  the 
width  of  the  Federal  franchise  thus  granted,  are  at  present 
insignificant  is  due,  partly  to  the  prevalence  of  democratic 
theories  of  equality  over  the  whole  Union,  partly  to  the  provi- 
sion of  the  fourteenth  amendment  to  the  Federal  Constitution, 
which  reduces  the  representation  of  a  State  in  the  Federal 
House  of  Representatives,  and  therewith  also  its  weight  in  a 
presidential  election,  in  proportion  to  the  number  of  adult  male 
citizens  disqualified  in  that  State.  As  a  State  desires  to  have 
its  full  weight  in  national  politics,  it  has  a  strong  motive  for 
the  widest  possible  enlargement  of  its  Federal  franchise,  and 
this  implies  a  corresponding  width  in  its  domestic  franchise. 

The  number  of  members  of  the  legislature  varies  greatly  from 
State  to  State.  Delaware,  with  nine  senators,  has  the  smallest 
Senate,  Illinois,  with  fifty-one,  the  largest.  Delaware  has  also 
the  smallest  House  of  Representatives,  consisting  of  twenty-one 
members ;  while  New  Hampshire,  a  very  small  State,  has  the 
largest  with  321.  The  New  York  houses  number  32  and  128 
respectively,  those  of  Pennsylvania  50  and  201,  those  of  Massa- 
chusetts 40  and  240.  In  the  Western  and  Southern  States  the 
number  of  representatives  rarely  exceeds  120.'' 

As  there  is  a  reason  for  everything  in  the  world,  if  one  could 
but  find  it  out,  so  for  this  difference  between  the  old  New 
England  States  and  those  newer  States  which  in  many  other 

vote  to  women  by  their  Constitutions ;  Massachusetts  has  granted  it  by  statute ; 
Washington  permits  the  legislature  to  grant  it;  Idaho  grants  it  provisionally, 
permitting  the  legislature  to  withdraw  it.  Montana  confers  what  may  be  called 
the  tax-payers'  referendum  or  direct  popular  vote  on  women  possessing  the  like 
qualifications  with  men  (Art.  ix.  §  12). 

1  North  Dakota,  however,  provides  that  its  Senate  may  have  as  many  as 
50,  its  House  as  many  as  140  members. 


CHAP.  XL  STATE  LEGISLATURES  487 

points  have  followed  their  precedents.  In  the  New  England 
States  local  feeling  was  and  is  intensely  strong,  and  every  little 
town  wanted  to  have  its  member.  In  the  West  and  South, 
local  divisions  have  had  less  natural  life ;  in  fact,  they  are 
artificial  divisions  rather  than  genuine  communities  that  arose 
spontaneously.  Hence  the  same  reason  did  not  exist  in  the 
West  and  South  for  having  a  large  Assembly ;  while  the  dis- 
trust of  representatives,  the  desire  to  have  as  few  of  them  as 
possible  and  pay  them  as  little  as  possible,  have  been  specially 
strong  motives  in  the  West  and  South,  as  also  in  New  York 
and  Pennsylvania,  and  have  caused  a  restriction  of  numbers. 

In  all  States  the  members  of  both  Houses  receive  the  same 
salary.  In  some  cases  it  is  fixed  at  an  annual  sum  of  from 
$150  (Maine)  to  $1500  (New  York),  the  average  being  $500 
(£100).  More  frequently,  however,  it  is  calculated  at  so 
much  for  every  day  during  which  the  session  lasts,  varying 
from  $1  (in  Rhode  Island)  to  $8  (in  California  and  Nevada) 
per  day  (4s.  2d.  to  £1:  13:  4),  ($5  seems  to  be  the  average), 
ijesides  a  small  allowance,  called  mileage,  for  travelling  ex- 
penses. These  sums,  although  unremunerative  to  a  man  who 
leaves  a  thriving  business  to  attend  in  the  State  capital,  are  an 
object  of  such  desire  to  many  of  the  representatives  of  the 
people,  that  the  latter  have  thought  it  prudent  to  restrict  the 
length  of  the  legislative  sessions,  which  now  stand  generally 
limited  to  a  fixed  number  of  days,  varying  from  forty  days  in 
Georgia,  Nebraska,  and  Oregon,  to  150  days  in  Pennsylvania. 
The  States  which  pay  by  the  day  are  also  those  which  limit 
the  session.  Some  States  secure  themselves  against  prolonged 
sessions  by  providing  that  the  daily  pay  shall  diminish,  or 
shall  absolutely  cease  and  determine,  at  the  expiry  of  a  certain 
number  of  days,  hoping  thereby  to  expedite  business  and 
check  inordinate  zeal  for  legislation.^ 

It  was  formerly  usual  for  the  legislature  to  meet  annually, 
but  the  experience  of  bad  legislation  and  over  legislation  has 
led  to  fewer  as  well  as  shorter  sittings  ;  and  sessions  are  now 
biennial  in  all  States  but  the  five  following :  —  Massachusetts, 
Rhode  Island,  New  York,  New  Jersey,  South  Carolina,  all  of 

1  These  limitations  on  payment  are  sometimes,  where  statutory,  repealed  for 
the  occasion.  In  the  Swiss  Federal  Assembly  a  member  receives  pay  (16s. 
per  diem)  only  for  those  days  on  which  he  answers  to  his  name  on  the  roll  call. 


I 


4^8  THE   STATE   GOVERNMENTS 


them  old  States.  In  these  the  sessions  are  annual,  save  in  that 
odd  little  nook  Ehode  Island,  which  still  convokes  her  legisla- 
ture every  May  at  Newport,  and  afterwards  holds  an  adjourned 
session  at  Providence,  the  other  chief  city  of  the  common- 
wealth. There  is,  however,  in  nearly  all  States  a  power 
reserved  to  the  governor  to  summon  the  Houses  in  extraordi- 
nary session  should  a  pressing  occasion  arise,  but  the  provisions 
for  daily  pay  do  not  usually  apply  to  these  extra  sessions.^ 

Bills  may  originate  in  either  House,  save  that  in  twenty-one 
States  money  bills  must  originate  in  the  House  of  Representa- 
tives, a  rule  for  which,  in  the  present  condition  of  things,  when 
both  Houses  are  equally  directly  representative  of  the  people 
and  chosen  by  the  same  electors,  no  sufficient  ground  appears. 
It  is  a  curious  instance  of  the  wish  which  animated  the  framers 
of  the  first  Constitutions  of  the  original  thirteen  States  to  repro- 
duce those  details  of  the  English  Constitution  which  had  been 
deemed  bulwarks  of  liberty.  The  newer  States  borrowed  it 
from  their  elder  sisters,  and  the  existence  of  a  similar  provi- 
sion in  the  Federal  Constitution  has  helped  to  perpetuate  it  in 
all  the  States.  But  there  is  a  reason  for  it  in  Congress,  the 
Federal  Senate  not  being  directly  representative  of  equal  num- 
bers of  citizens,  which  is  not  found  in  the  State  legislatures  : 
it  is  in  these  last  a  mere  survival  of  no  present  functional 
value.  Money  bills  may,  however,  be  amended  or  rejected  by 
the  State  Senates  like  any  other  bills,  just  as  the  Federal 
Senate  amends  money  bills  brought  up  from  the  House. 

In  one  point  a  State  Senate  enjoys  a  special  power,  obviously 
modelled  on  that  of  the  English  House  of  Lords  and  the 
Federal  Senate.  It  sits  as  a  court  under  oath  for  the  trial  of 
State  officials  impeached  by  the  House.^  Like  the  Federal 
Senate,  it  has  in  many  States  the  power  of  confirming  or 
rejecting  appointments  to  office  made  by  the  governor.  When 
it  considers  these  it  is  said  to  "go  into  executive  session."  The 
power  is  an  important  one  in  those  States  which  allow  the 
governor  to  nominate  the  higher  judges.  In  other  respects 
the  powers   and   procedure  of   the    two    Houses   of    a   State 

1  Some  of  the  bieunially-raeeting  legislatures  are  apt  to  hold  adjourned 
sessions  iu  the  off  years. 

2  In  New  York  impeachments  are  tried  by  the  Senate  and  the  judges  of  the 
Court  of  Appeals  sitting  together:  in  Nebraska  by  the  judges  of  the  Supreme 
court. 


I 


CHAP.  XL  STATE  LEGISLATURES  489 

legislature  are  identical ;  ^  except  that,  whereas  the  lieutenant- 
governor  of  a  State  is  generally  ex  officio  president  of  the  Senate, 
with  a  casting  vote  therein,  the  House  always  chooses  its  own 
Speaker.  The  legal  quorum  is  usually  fixed,  by  the  Constitu- 
tion, at  a  majority  of  the  whole  number  of  members  elected,^ 
though  a  smaller  number  may  adjourn  and  compel  the  attend- 
ance of  absent  members.  Both  Houses  do  most  of  their  work 
by  committees,  much  after  the  fashion  of  Congress,^  and  the 
committees  are  in  both  usually  chosen  by  the  Speaker  (in 
the  Senate  by  the  President  of  that  body),  though  it  is  often 
provided  that  the  House  (or  Senate)  may  on  motion  vary  their 
composition.*  Both  Houses  sit  with  open  doors,  but  in  most 
States  the  Constitution  empowers  them  to  exclude  strangers 
when  the  business  requires  secrecy. 

The  State  governor  has  of  course  no  right  to  dissolve  the 
legislature,  nor  even  to  adjourn  it  unless  the  Houses,  while 
agreeing  to  adjourn,  disagree  as  to  the  date.  Such  control  as 
the  legislature  can  exercise  over  the  State  officers  by  way  of 
inquiry  into  their  conduct  is  generally  exercised  by  commit- 
tees, and  it  is  in  committees  that  the  form  of  bills  is  usually 
settled  and  their  fate  decided,  just  as  in  the  Federal  Congress, 
the  lobby  having  of  course  a  great  and  usually  a  pernicious 
influence.  The  proceedings  are  rarely  reported.  Sometimes 
when  a  committee  takes  evidence  on  an  important  question  re- 
porters are  present,  and  the  proceedings  more  resemble  a  public 
meeting  than  a  legislative  session.  It  need  scarcely  be  added 
that  neither  House  separately,  nor  both  Houses  acting  together, 

1  Here  and  there  one  finds  slight  differences,  as,  for  instance,  in  Vermont  the 
power  decennially  to  propose  amendments  to  the  Constitution  belongs  to  the 
Senate,  though  the  concurrence  of  the  House  is  needed.  However,  I  do  not 
attempt  in  this  summary  to  give  every  detail  of  every  Constitution,  but  only  a 
fair  general  account  of  what  commonly  prevails,  and  is  of  most  interest  to  the 
student  of  comparative  politics. 

2  Four  constitutions  fix  the  quorum  at  two-thirds,  and  two  specify  a  number. 

3  See,  as  to  the  committees  of  Congress,  Chapter  XV.  ante.  Many  constitu- 
tions provide  that  no  bill  shall  pass  unless  it  has  been  previou.sly  referred  to 
and  considered  by  a  committee. 

4  In  Massachusetts  there  were  in  1890-91  six  standing  committees  of  the 
Senate,  ten  of  the  House,  and  thirty-three  joint  standing  committees  of  both 
Houses.  In  North  Dakota  there  were  in  1891  thirty-seven  standing  committees 
of  the  House,  thirty-one  of  the  Senate,  and  six  joint  standing  committees  of 
House  and  Senate.  In  New  York  there  were  thirty-three  standing  committees 
of  the  Senate,  thirty-six  of  the  Assembly. 


490  THE  STATE  GOVERNMENTS  part  ii 

can  control  an  executive  officer  otherwise  than  either  by  jjass- 
ing  a  statute  prescribing  a  certain  course  of  action  for  him, 
which  if  it  be  in  excess  of  their  powers  will  be  held  unconsti- 
tutional and  void,  or  by  withholding  the  appropriations  neces- 
sary to  enable  him  to  carry  out  the  course  of  action  he  proposes 
to  adopt.  The  latter  method,  where  applicable,  is  the  more 
effective,  because  it  can  be  used  by  a  bare  majority  of  either 
House,  whereas  a  bill  passed  by  both  Houses  may  be  vetoed 
by  the  governor,  a  point  so  important  as  to  need  a  few  words. 

Four  States,  three  of  them  original  States,  vest  legislative 
authority  in  the  legislature  alone.  These  are  Rhode  Island, 
Delaware,  North  Carolina,  and  Ohio.  All  the  rest  require  a 
bill  to  be  submitted  to  the  governor,  and  permit  him  to  return 
it  to  the  legislature  with  his  objections.  If  he  so  returns  it,  it 
can  only  be  again  passed  "  over  the  veto  "  by  something  more 
than  a  bare  majority.  To  so  pass  a  bill  over  the  veto  there  is 
required  — 

In  two  States  a  majority  of  three-fifths  in  each  House. 

In  twenty-seven  States  a  majority  of  two-thirds  in  each  House. 

In  nine  States  a  majority  in  each  House  of  all  the  members 
elected  to  that  House. 

In  two  States  (North  Dakota  and  Wyoming),  a  majority  of 
two-thirds  of  all  the  members  elected. 

Here,  therefore,  as  in  the  Federal  Constitution,  we  find  a 
useful  safeguard  against  the  unwisdom  or  misconduct  of  a  leg- 
islature, and  a  method  provided  for  escaping,  in  extreme  cases, 
from  those  deadlocks  which  the  system  of  checks  and  balances 
tends  to  occasion. 

I  have  adverted  in  a  preceding  chapter  to  the  restrictions 
imposed  on  the  legislatures  of  the  States  by  their  respective 
Constitutions.  These  restrictions,  which  are  numerous,  elabo- 
rate, and  instructive,  take  two  forms  — 

I.  Exclusions  of  a  subject  from  legislative  competence,  i.e. 
prohibitions  to  the  legislature  to  pass  any  law  on  certain  enu- 
merated subjects.  The  most  important  classes  of  prohibited 
statutes  are  — 

Statutes  inconsistent  with  democratic  principles,  as,  for 
example,  granting  titles  of  nobility,  favouring  one  relig- 
ious denomination,  creating  a  property  qualification  for 
suffrage  or  office. 


CHAP.  XL  STATE   LEGISLATURES  491 

Statutes  against  public  policy,  e.g.  tolerating  lotteries,  im- 
pairing the  obligation  of  contracts,  incorporating  or  per- 
mitting the  incorporation  of  banks,  or  the  holding  by  a 
State  of  bank  stock.^ 

Statutes  special  or  local  in  their  application,  a  very  large 
and  increasing  category,  the  fulness  and  minuteness  of 
Avhich  in  many  Constitutions  show  that  the  mischiefs 
arising  from  improvident  or  corrupt  special  legislation 
must  have  become  alarming.  The  lists  of  prohibited  sub- 
jects in  the  Constitutions  of  Missouri  of  1875,  Montana 
and  North  Dakota  of  1889,  Mississippi  of  1890,  are  the 
most  complete  I  have  found. ^ 

Statutes  increasing  the  State  debt  beyond  a  certain  limited 
amount,  or  permitting  a  local  authority  to  increase  its  debt 
beyond  a  prescribed  amount,  the  amount  being  usually 
fixed  in  proportion  to  the  valuation  of  taxable  property 
within  the  area  administered  by  the  local  authority.^ 

II.  Restrictions  on  the  procedure  of  the  legislature,  i.e. 
directions  as  to  the  particular  forms  to  be  observed  and  times 
to  be  allowed  in  passing  bills,  sometimes  all  bills,  sometimes 
bills  of  a  certain  specified  nature.  Among  these  restrictions 
will  be  found  provisions  — 

As  to  the  majorities  necessary  to  pass  certain  bills,  especially 
appropriation  bills.  Sometimes  a  majority  of  the  whole 
number  of  members  elected  to  each  House  is  required,  or 
a  majority  exceeding  a  bare  majority. 

As  to  the  method  of  taking  the  votes,  e.g.  by  calling  over  the 
roll  and  recording  the  vote  of  each  member. 

As  to  allowing  certain  intervals  to  elapse  between  each  read- 
ing of  a  measure,  and  for  preventing  the  hurried  passage 
of  bills,  especially  appropriation  bills,  at  the  end  of  the 
session. 

1  See,  for  instance,  Constitution  of  Texas  of  187f). 

2  Similar  lists  occur  in  the  constitutions  of  all  the  Western  and  Southern 
States  as  well  as  of  some  Eastern  States  {e.g.  Constitution  of  Pennsylvania  of 
1873,  Art.  iii.  §  7  ;  Constitution  of  New  York,  amendments  of  1874  to  Constitu- 
tion of  1840).  Among  them  the  prohibitions  to  grant  divorces  and  to  author- 
ize the  adoption  or  legitimation  of  children  are  frequent. 

3  See  also  Chapter  XLIII.  on  Stat(>  Finance.  The  local  authorities  had  been 
usually  forbidden  by  statute  to  borrow  or  tax  beyond  a  certain  amount,  but 
as  theV  had  formed  the  habit  of  obtaining  dispensations  from  the  State  legis- 
latures, the  check  mentioned  in  the  text  has  been  imposed  on  the  latter. 


492  THE   STATE   GOVERNMENTS  part  ii 

As  to  reading  of  bills  publicly  and  at  full  length. 

As  to  sending  all  bills  to  a  committee,  and  prescribing  the 
mode  of  its  action. 

Against  secret  sessions  (Idaho). 

As  to  preventing  an  act  from  taking  effect  until  a  certain 
time,  e.g.  ninety  days  (South  Dakota,  Kentucky),  after 
the  adjournment  of  the  session. 

Against  changing  the  purpose  of  a  bill  during  its  passage. 

As  to  including  in  a  bill  only  one  subject,  and  expressing 
that  subject  in  the  title  of  the  bill. 

Against  re-enacting,  or  amending,  or  incorporating,  any 
former  act  by  reference  to  its  title  merely,  without  setting 
out  its  contents.^ 

The  two  latter  classes  of  provisions  might  be  found  whole- 
some in  England,  where  much  of  the  difficulty  complained  of 
by  the  judges  in  construing  the  law  arises  from  the  modern 
habit  of  incorporating  parts  of  former  statutes,  and  dealing 
with  them  by  reference.^ 

Where  statutes  have  been  passed  by  a  legislature  upon  a 
prohibited  subject,  or  where  the  prescribed  forms  have  been 
transgressed  or  omitted,  the  statute  will  be  held  void  so  far  as 
inconsistent  with  the  Constitution. 

Even  these  multiform  restrictions  on  the  State  legislatures 
have  not  been  found  sufficient.  Bitted  and  bridled  as  they  are 
by  the  Constitutions,  they  contrive,  as  will  appear  in  a  later 
chapter,  to  do  plenty  of  mischief  in  the  direction  of  private  or 
special  legislation. 

Although  State  legislatures  have  of  course  no  concern  what- 
ever with  foreign  affairs,  this  is  not  deemed  a  reason  for  ab- 
staining from  passing  resolutions  on  that  subject.  The  passion 
for  what  is  called  "  resoluting  "  is  strong  everywhere  in  Amer- 

1  Indiana  and  Oregon  direct  every  Act  to  be  plainly  worded,  avoiding  as  far 
as  possible  tecbnical  terms,  and  Louisiana  (Constitution  of  1879,  §  31)  says: 
"  The  General  Assembly  shall  never  adopt  any  system  or  code  of  laws  by  gen- 
eral reference  to  such  system  or  code  of  laws,  but  in  all  cases  shall  recite  at 
length  the  several  provisions  of  the  laws  it  may  enact." 

2  Not  to  add  that  the  inclusion  in  one  statute  of  wholly  different  matters 
may  operate  harshly  on  persons  who  have  failed  to  note  the  minor  contents 
of  a  bill  whose  principal  purpose  does  not  affect  them.  The  commoners  of  the 
New  Forest  in  Hampshire  were,  some  years  ago,  surprised  to  awake  one  morn- 
ing and  find  that  the  Crown  had  smuggled  through  Parliament,  in  an  Act  re- 
lating to  foreshores  in  Scotland,  a  clause  seriously  prejudicial  to  their  interests. 


CHAP.  XL  STATE  LEGISLATURES  493 

ica,  and  an  expression  of  sympathy  with  an  oppressed  foreign 
nationality,  or  of  displeasure  at  any  unfriendly  behaviour  of 
a  foreign  power,  is  not  only  an  obvious  way  of  relieving  the 
feelings  of  the  legislators,  but  often  an  electioneering  device, 
which 'appeals  to  some  section  of  the  State  voters.  Accord- 
ingly such  resolutions  are  common,  and,  though  of  course  quite 
irregular,  quite  innocuous. 

Debates  in  these  bodies  are  seldom  well  reported,  and  some- 
times not  reported  at  all.  One  result  is  that  the  conduct  of 
members  escapes  the  scrutiny  of  their  constituents ;  a  better 
one  that  speeches  are  generally  short  and  practical,  the  motive 
for  rhetorical  displays  being  absent.  If  a  man  does  not  make 
a  reputation  for  oratory,  he  may  for  quick  good  sense  and  busi- 
ness habits.  However,  so  much  of  the  real  work  is  done  in 
committees  that  talent  for  intrigue  or  "  management "  usually 
counts  for  more  than  debating  power. 


CHAPTER   XLI 

THE    STATE    EXECUTIVE 

The  executive  department  iu  a  State  consists  of  a  governor 
(in  all  the  States),  a  lieutenant-governor  (in  thirty-two),  and  of 
various  minor  officials.  The  governor,  who,  under  the  earlier 
Constitutions  of  most  of  the  original  thirteen  States,  was 
chosen  by  the  legislature,  is  now  always  elected  by  the  peo- 
ple, and  by  the  same  suffrage,  practically  universal,  as  the 
legislature.  He  is  elected  directly,  not,  as  under  the  Federal 
Constitution,  by  a  college  of  electors.  His  term  of  office  is, 
in  nineteen  States,  four  years ;  in  two  States,  three  years  ;  in 
twenty-one  States,  two  years  ;  and  in  two  States  (Massachu- 
setts and  Rhode  Island),  one  year.  His  salary  varies  from 
$10,000  in  New  York  and  Pennsylvania  to  flOOO  in  Michigan. 
Some  States  limit  his  re-eligibility  ;  but  in  those  which  do  not 
there  exists  no  tradition  forbidding  a  third  term  of  office 
similar  to  that  which  prevails  in  the  Federal  Government. 

The  earlier  Constitutions  of  the  original  States  (except 
South  Carolina)  associated  with  the  governor  an  executive 
council^  (called  in  Delaware  the  Privy  Council),  bvit  these 
councils  have  long  since  disappeared,  except  in  Massachusetts, 
Maine,  and  North  Carolina,  and  the  governor  remains  in  soli- 
tary glory  the  official  head  and  representative  of  the  majesty 
of  the  State.     His  powers  are,  however,  in   ordinary  times 

1  Another  illustration  of  the  tendency  to  reproduce  England.  Vermont  was 
still  under  the  influence  of  colonial  precedents  when  it  framed  its  Constitu- 
tions of  1786  and  1793.  Maine  was  influenced  by  Massachusetts.  None  of  the 
newer  Western  States  has  ever  ti-ied  the  experiment  of  such  a  council. 

New  York  had  originally  two  Councils,  a  "Council  of  Appointment,"  con- 
sisting of  the  Governor  and  a  Senator  from  each  of  the  (originally  four) 
districts,  and  a  "Council  of  Revision,"  consisting  of  the  Governor,  the 
Chancellor  and  the  judges  of  the  Supreme  court,  and  possessing  a  veto  on 
statiites.  Tlie  Governor  has  now,  since  the  extinction  of  these  two  councils, 
obtained  some  of  the  patronage  which  belonged  to  the  former  as  well  as  the 
veto  which  belonged  to  the  latter. 
491 


I 


CHAP.  XLi  THE   STATE   EXECUTIVE  495 

more  specious  than  solid,  and  only  one  of  them  is  of  great 
practical  value.  He  is  charged  with  the  duty  of  seeing  that 
the  laws  of  the  State  are  faithfully  administered  by  all  offi- 
cials and  the  judgments  of  the  courts  carried  out.  He  has,  in 
nearly  all  States,  the  power  of  reprieving  and  pardoning  of- 
fenders, but  in  some  this  does  not  extend  to  treason  or  to 
conviction  on  impeachment  (in  Vermont  he  cannot  pardon  for 
murder),  and  in  some,  other  authorities  are  associated  with 
him  in  the  exercise  of  this  prerogative.  Some  recent  Consti- 
tutions impose  restrictions  which  witness  to  a  distrust  of  his 
action;  nor  can  it  be  denied  that  the  power  has  sometimes 
been  used  to  release  offenders  {e.g.  against  the  election  laws) 
who  deserved  no  sympathy.  The  governor  is  also  commander- 
in-chief  of  the  armed  forces  of  the  State,  can  embody  the 
militia,  repel  invasion,  suppress  insurrection.  The  militia  are 
now  important  chiefly  as  the  force  which  may  be  used  to  sup- 
press riots,  latterly  not  unfrequent  in  connection  with  labor 
disputes.  Massachusetts  has  also  created  a  small  State  police 
force  (called  the  District  Police),  placing  it  at  the  disposal  of 
the  governor  for  the  maintenance  of  ordei-,  wherever  disturbed, 
and  for  the  enforcement  of  various  administrative  regulations. 
It  has  recently  been  proposed  to  establish  a  State  police  in 
Pennsylvania  for  the  same  purposes.  Michigan  has  (and  Mas- 
sachusetts and  Rhode  Island  formerly  had)  a  State  police  for 
the  enforcement  of  their  anti-liquor  legislation. 

He  appoints  some  few  officials,  but  seldom  to  high  posts, 
and  in  many  States  his  nominations  requii-e  the  approval  of 
the  State  Senate.  Patronage,  in  which  the  President  of  the 
United  States  finds  one  of  his  most  desired  and  most  disa- 
greeable functions,  is  in  the  case  of  a  State  governor  of  slight 
value,  because  the  State  offices  are  not  numerous,  and  the 
more  important  and  lucrative  ones  are  filled  b}^  the  direct 
election  of  the  people.  He  has  the  right  of  requiring  informa- 
tion from  the  executive  officials,  and  is  usually  bound  to  com- 
municate to  the  legislature  his  views  regarding  the  condition 
of  the  commonwealth.  He  may  also  recommend  measures  to 
them,  but  does  not  frame  and  present  bills.  In  a  few  States 
he  is  directed  to  present  estimates.  He  has  in  all  the  States 
but  four  a  veto  upon  bills  passed  by  the  legislature.^     This 

lit  deserves  to  be  remarked  that  iieitlier  the  Constitution  of  the  Swiss 
Confederation  nor  any  cantonal  constitution  vests  a  veto  in  any  officer. 


496  THE   STATE   GOVERNMENTS  part  n 

veto  may  be  overridden  in  manner  already  indicated  (see  last 
preceding  chapter),  but  generally  kills  the  measure,  because  if 
the  bill  is  a  bad  one,  it  calls  the  attention  of  the  people  to  the 
fact  and  frightens  the  legislature,  whereas  if  the  bill  be  an  un- 
objectionable one,  the  governor's  motive  for  vetoing  it  is  prob- 
ably a  party  motive,  and  the  requisite  overriding  majority  can 
seldom  be  secured  in  favour  of  a  bill  which  either  party  dislikes. 
The  use  of  his  veto  is,  in  ordinary  times,  a  governor's  most 
serious  duty,  and  chiefly  by  his  discharge  of  it  is  he  judged. 

Although  much  less  sought  after  and  prized  than  in  ''the 
days  of  the  Fathers,"  when  a  State  governor  sometimes  refused 
to  yield  precedence  to  the  President  of  the  United  States,  the 
governorship  is  still,  particularly  in  New  England,  and  the 
greater  States,  a  post  of  some  dignity,  and  affords  an  oppor- 
tunity for  the  display  of  character  and  talents.  It  was  in  his 
governorship  of  New  York  that  Mr.  Cleveland,  for  instance, 
commended  himself  to  his  party,  and  rose  to  be  President  of 
the  United  States.  Similarly  Mr.  Hayes  was  put  forward  for 
the  Presidency  in  1876  because  he  had  been  a  good  governor  of 
Ohio.  During  the  Civil  War,  when  each  governor  was  respon- 
sible for  enrolling,  equipping,  officering,  and  sending  forward 
troops  from  his  State,^  and  when  it  rested  with  him  to  repress 
attempts  at  disorder,  much  depended  on  his  energy,  popularity, 
and  loyalty.  In  some  States  men  still  talk  of  the  "war  gov- 
ernors "  of  those  days  as  heroes  to  whom  the  North  owed  deep 
gratitude.  And  since  the  Pennsylvania!!  riots  of  1877  and  those 
which  have  subsequently  occi!rred  i!!  Cinci!inati  and  Chicago 
have  shown  that  tumults  may  suddenly  grow  to  serious  propor- 
tions, it  has  in  many  States  become  important  to  have  a  man 
of  prompt  decisio!!  a!!d  fearlessness  in  the  office  which  issues 
orders  to  the  State  militia.  The  elective  Lieutenai!t-Governor 
who,  in  most  States,  steps  into  the  gover!!or's  place  if  it  be- 
comes vacaiit,  is  usually  also  ex  officio  Preside!!t  of  the  Senate,* 

Switzerland  seems  in  this  respect  more  democratic  than  the  American  States, 
while  in  the  amount  of  authority  M'hich  the  Swiss  allow  to  the  executive  gov- 
ernment over  the  citizen  (as  witness  the  case  of  the  Salvation  Army  troubles 
in  Canton  Bern)  they  are  less  democratic. 

1  Commissions  to  officers  up  to  the  rank  of  colonel  inclusive  were  usually 
issued  by  the  governor  of  the  State ;  the  regiment,  in  fact,  was  a  State  product, 
though  the  regular  Federal  army  is  of  course  raised  and  managed  by  the  Fed- 
eral Government  directly. 

"  In  Rhode  Island  the  governor  presides  over  the  Senate,  an  interesting 
survival  of  European  arrangements. 


CHAP.  xLi  THE   STATE   EXECUTIVE  497 

as  the  Vice-President  of  the  United  States  is  of  the  Federal 
Senate.  Otherwise  he  is  an  insignificant  personage,  though 
sometimes  a  member  of  some  of  the  executive  boards.^ 

The  names  and  duties  of  the  other  officers  vary  from  State 
to  State.  The  most  frequent  are  a  secretary  of  state  (in  all 
States),  a  treasurer  (in  all),  an  attorney-general,  a  comptroller, 
an  auditor,  a  superintendeiit  of  jjublic  instruction.  Kow  and 
then  we  find  a  State  engineer,  a  surveyor,  a  superintendent  of 
prisons.  Some  States  have  also  various  boards  of  commission- 
ers, e.g.  for  railroads,  for  canals,  for  prisons,  for  the  land  office, 
for  agriculture,  for  labour,  for  immigration.  Most  of  these 
officials  are  in  nearly  all  States  elected  by  the  people  at  the 
general  State  election.  Sometimes,  however,  they,  or  some  of 
them,  are  either  chosen  by  the  legislature,  or,  more  rarely,  ap- 
pointed by  the  governor,  whose  nomination  usually  requires 
the  confirmation  of  the  Senate.  Their  salaries,  which  of  course 
vary  with  the  importance  of  the  office  and  the  parsimony  of 
the  State,  seldom  exceed  $5000  (£1000)  per  annum  and  are 
usually  smaller.  So,  too,  the  length  of  the  term  of  office  varies. 
It  is  often  the  same  as  that  of  the  governor,  and  never  exceeds 
four  years,  except  that  in  New  Jersey,  a  conservative  State, 
the  secretary  and  attorney-general  hold  for  five  years ;  and 
in  Tennessee  the  attorney-general,  who,  oddly  enough,  is  ap- 
pointed by  the  supreme  court  of  the  State,  holds  for  eight. 

It  has  already  been  observed  that  the  State  officials  are  in  no 
sense  a  ministry  or  cabinet  to  the  governor.  Holding  indepen- 
dently of  him,  and  responsible  neither  to  him  nor  to  the  legis- 
lature, but  to  the  people,  they  do  not  take  generally  his  orders, 
and  need  not  regard  his  advice.^    Each  has  his  own  department 

1  Where  there  is  no  lieutenant-governor,  the  President  of  the  State  Senate 
or  the  Secretary  of  State  usually  succeeds  if  the  governor  dies  or  becomes 
incapable. 

2  Florida,  by  her  Constitution  of  1868,  Art.  vi.  17,  and  Art.  viii.,  created  a 
"cabinet  of  administrative  officers,"  consisting  of  eight  officials,  appointed  by 
the  governor,  with  the  consent  of  the  Senate,  to  hold  office  for  the  same  time 
as  the  governor,  and  "  assist  the  governor  in  the  performance  of  his  duties." 
However,  in  her  Constitution  of  1886  she  simply  provides  that  "the  governor 
shall  be  assisted  by  administrative  officers,"  viz.  secretary  of  state,  attorney- 
general,  comptroller,  treasurer,  superintendent  of  public  instruction,  and  com- 
missioner of  agriculture,  all  elected  by  the  people  at  the  same  time  with  the 
governor  and  for  the  same  term.  The  council  of  North  Carolina  (Const,  of 
1868)  consists  of  five  officials,  who  are  to  "advise  the  governor  in  the  execu- 
tion of  his  duty,"  but  they  are  elected  directly  by  the  people.    Their  position 

VOL.  I  2  K 


L 


498  THE   STATE   GOVERNMENTS  part  n 

to  administer,  and  as  there  is  little  or  nothing  political  in  the 
work,  a  general  agreement  in  policy,  such  as  must  exist  between 
the  Federal  President  and  his  ministers,  is  not  required.  Policy- 
rests  with  the  legislature,  whose  statutes,  prescribing  minutely 
the  action  to  be  taken  by  the  officials,  leave  little  room  for 
executive  discretion.  Europeans  may  realize  the  nature  of  the 
system  by  imagining  a  municipal  government  in  which  the 
mayor,  town  clerk,  health  officer,  and  city  architect  are  all 
chosen  directly  by  the  people,  instead  of  by  the  common  coun- 
cil, and  in  which  each  of  these  officials  is  for  most  purposes, 
independent  not  only  of  the  mayor,  but  also  of  the  common 
council,  except  in  so  far  as  the  latter  has  the  right  of  granting 
money,  and  as  it  can  act  by  general  ordinances  —  that  is  to 
say,  act  as  a  legislative  and  not  as  an  administrative  body.^ 

To  give  a  clearer  idea  of  the  staff  of  a  State  government  I 
will  take  the  great  State  of  Ohio,  and  give  the  functions  of 
the  officials  by  whom  it  is  administered. 

The  executive  officials  of  Ohio  were  in  1891  — 
A  Governor,  elected  by  the  people  for  two  years.     His  chief 
duties  are  to  execute  the  laws,  convene  the  legislature  on 
extraordinary  occasions,  command  the   State  forces,  ap- 
point staff  officers  and  aides-de-camp,  grant  pardons  and 
reprieves,  issue  commissions  to  State  and  county  officers, 
make  a  variety  of  appointments,  serve  on  certain  boards, 
and  remove,  with  the  assent  of  the  Senate,  any  official  ap- 
pointed by  him  and  it.    He  is  paid  $8000  (£1600)  a  year. 
A  Lieutenant-Governor,  elected  for  two  years,  salary  $800  a 
year,  with  the  duty  of  succeeding  to  the   governor  (in 
case  of  death  or  disability),  and  of  presiding  in  the  Senate. 
A  Secretary  of  State,  elected  for  two  years  (along  with  the 
governor),  salary  $2000  a  year,  besides  sundry  fees  for 
copies  of  documents.     His  duties  are  to  take  charge  of 

may  be  compared  with  that  of  the  Council  of  India  under  recent  English  stat- 
utes towards  the  Secretary  of  State  for  India.  Massachusetts  has  always  had 
an  "executive  council"  consisting  of  eight  persons  chosen  annually  by  the 
people  in  districts.  They  "advise  the  governor  in  the  executive  part  of  the 
government  "  and  have  the  right  of  rejecting  nominations  to  office  made  by 
him.  Here  too  we  find  a  survival,  which  at  present  seems  to  do  more  harm 
than  good,  because  it  lessens  the  governor's  responsibility. 

1  In  the  Swiss  Confederation  the  Federal  Council  of  Seven  consists  of  persons 
belonging  to  different  parties,  who  sometimes  speak  against  one  another  in  the 
chambers  (where  they  have  the  right  of  speech),  but  this  is  not  found  to  inter- 
fere with  their  harmonious  working  as  an  administrative  body. 


CHAP,  xn  THE   STATE   EXECUTIVE  499 

laws  and  documents  of  the  State,  gather  and  report  sta- 
tistics, distribute  instructions  to  certain  officers,  and  act 
as  secretary  to  certain  boards,  to  serve  on  the  State  print- 
ing and  State  library  boards,  to  make  an  abstract  of  the 
votes  for  candidates  at  presidential  and  State  elections. 

A  State  Auditor,  elected  for  four  years,  salary  $3000.  Duties 
—  to  keep  accounts  of  all  moneys  in  the  State  treasury, 
and  of  all  appropriations  and  warrants,  to  give  warrants 
for  all  payments  from  or  into  the  treasury,  to  conduct 
financial  communications  with  county  authorities,  and 
direct  the  attorney-general  to  prosecute  revenue  claims, 
to  serve  on  various  financial  boards,  and  manage  various 
kinds  of  financial  business. 

A  State  Treasurer,  elected  for  two  years,  salary  $3000.  Du- 
ties—  to  keep  account  of  all  drafts,  paying  the  money 
into  the  treasury,  and  of  auditor's  warrants  for  drafts 
from  it,  and  generally  to  assist  and  check  the  auditor  in 
the  supervision  and  disbursement  of  State  revenues,  pub- 
lishing monthly  statements  of  balances. 

A  State  Attorney-General,  elected  for  two  years,  salary  $1500 
a  year,  and  3  per  cent  on  all  collections  made  for  the  State, 
but  total  not  to  exceed  $3000  a  year  in  all.  Duties — to  ap- 
pear for  the  State  in  civil  and  criminal  cases,  advise  legally 
the  governor  and  other  State  officers,  and  the  Assembly, 
proceed  against  offenders,  enforce  performance  of  charitable 
trusts,  submit  statistics  of  crime,  sit  upon  various  boards. 

A  State  Commissioner  of  Common  Schools,  elected  for  three 
years,  salary  $2000  a  year.  Duties  —  to  visit  and  advise 
teachers'  institutes,  boards  of  education,  and  teachers,  de- 
liver lectures  on  educational  topics,  see  that  educational 
funds  are  legally  distributed,  prepare  and  submit  annual 
reports  on  condition  of  schools,  appoint  State  board  of  ex- 
aminers of  teachers. 

Three  Members  of  Board  of  Public  Works,  elected  for  three 
years,  one  in  each  year,  salary  $800  a  year,  and  travelling 
expenses,  not  exceeding  $50  a  month.  Duties  —  to  man- 
age and  repair  the  public  works  (including  canals)  of  the 
State,  appoint  and  supervise  minor  officials,  let  contracts, 
present  annual  detailed  report  to  the  governor. 

A  State  Dairy  and  Food  Commissioner,  elected  for  two  years, 
salary  $1200,  and  travelling  expenses. 


600  THE   STATE   GOVERNMENTS  part  ii 

Besides  these,  the  people  of  the  State  elect  the  judges  and 
the  clerk  of  the  supreme  court.  Other  officials  are  either 
elected  by  the  people  in  districts,  counties,  or  cities,  or  ap- 
pointed by  the  governor  or  legislature. 

Of  the  subordinate  civil  service  of  a  State  there  is  little  to 
be  said.  Though  it  is  not  large,  for  the  sphere  of  administra- 
tive action  which  remains  to  the  State  between  the  Federal 
government  on  the  one  side,  and  the  county,  city,  and  town- 
ship governments  on  the  other,  is  not  wide,  it  increases  daily, 
owing  to  the  eagerness  of  the  people  (especially  in  the  West) 
to  have  State  aid  rendered  to  farmers,  to  miners,  to  stock-keep- 
ers, and  generally  in  the  material  development  of  the  country. 
Much  is  now  done  in  the  way  of  collecting  statistics  and  issu- 
ing reports.  However,  these  administrative  bureaux  are  sel- 
dom well  manned,  for  the  State  legislatures  are  parsimonious, 
and  do  little,  by  good  salaries  or  otherwise,  to  induce  able  men 
to  enter  it :  while  the  so-called  "  Spoils  System,"  which  has 
been  hitherto  applied  to  State  no  less  than  to  Federal  offices, 
too  often  makes  places  the  reward  for  electioneering  and 
wirepulling.  Efforts  are  now  being  made  in  some  States  to 
introduce  reforms  similar  to  those  begun  in  the  Federal  admin- 
istration, whereby  certain  walks  of  the  civil  service  shall  be 
kept  out  of  politics,  at  least  so  far  as  to  secure  competent  men 
against  dismissal  on  party  grounds.  Such  reforms  would  in 
no  case  apply  to  the  higher  officials  chosen  by  the  people,  for 
they  are  always  elected  for  short  terms  and  on  party  lines. 

Every  State,  except  Oregon,  provides  for  the  impeachment 
of  executive  officers  for  grave  offences.  In  all,  save  two,  the 
State  House  of  Representatives  is  the  impeaching  body;  and 
in  all  but  oSTebraska  the  State  Senate  sits  as  the  tribunal,  a 
two-thirds  majority  being  generally  required  for  a  conviction. 
Impeachments  are  rare  in  practice. 

There  is  also  in  many  States  a  power  of  removing  officials, 
sometimes  by  the  vote  of  the  legislature,  sometimes  by  the 
governor  on  the  address  of  both  houses,  or  by  the  governor 
either  alone,  or  with  the  concurrence  of  the  Senate.  Such 
removals  must  of  course  be  made  in  respect  of  some  offence, 
or  for  some  other  sufficient  cause,  not  from  caprice  or  party 
motives;  and  when  the  case  does  not  seem  to  justify  imme- 
diate removal,  the  governor  is  frequently  empowered  to  sus- 
pend the  officer,  pending  an  investigation  of  his  conduct. 


CHAPTER  XLII 

THE    STATE    JUDICIARY 

The  Judiciary  in  every  State  includes  three  sets  of  courts  : 
—  A  supreme  court  or  court  of  appeal;  superior  courts  of 
record;  local  courts;  but  the  particular  names  and  relations 
of  these  several  tribunals  and  the  arrangements  for  criminal 
business  vary  greatly  from  State  to  State.  We  hear  of  courts 
of  common  pleas,  probate  courts/  surrogate  courts,  prerogative 
courts,  courts  of  oyer  and  terminer,  orphans'  courts,  court  of 
general  sessions  of  the  peace  and  gaol  delivery,  quarter  ses- 
sions, hustings  courts,  county  courts,  etc.  etc.  All  sorts  of 
old  English  institutions  have  been  transferred  bodily,  and 
sometimes  look  as  odd  in  the  midst  of  their  new  surroundings 
as  the  quaint  gables  of  a  seventeenth-century  house  among 
the  terraces  of  a  growing  London  suburb.  As  respects  the 
distinction  which  Englishmen  used  to  deem  fundamental,  that 
of  courts  of  common  law  and  courts  of  equity,  there  has  been 
great  diversity  of  practice.  Most  of  the  original  thirteen 
colonies  once  possessed  separate  courts  of  chancery,  and  these 
were  maintained  for  many  years  after  the  separation  from 
England,  and  were  imitated  in  a  few  of  the  earlier  among  the 
new  States,  such  as  Michigan,  Arkansas,  Missouri.  In  some 
of  the  old  States,  however,  the  hostility  to  equity  jurisdiction, 
which  marked  the  popular  party  in  England  in  the  seventeenth 
century,  had  transmitted  itself  to  America.  Chancery  courts 
were  regarded  with  suspicion,  because  thought  to  be  less  bound 
by  fixed  rules,  and  therefore  more  liable  to  be  abused  by  an 
ambitious  or  capricious  judiciary.^   Massachusetts,  for  instance, 

1  Admiralty  business  is  within  the  exclusive  jurisdiction  of  the  Federal 
courts. 

2  Note  that  the  grossest  abuses  of  judicial  power  by  American  judges,  such 
as  the  Erie  Raih-oad  injunctions  of  Judge  Barnard  of  New  York  in  18(59,  were 
perpetrated  in  the  exercise  of  equitable  jurisdiction.  Equity  in  granting  dis- 
cretion opens  a  door  to  indiscretion,  or  to  something  worse. 

601 


502  THE   STATE   GOVEENMEXTS  pakt  ii 

■would  permit  no  siicli  court,  though  slie  ■R'as  eventually  obliged 
to  invest  her  ordinary  judges  Tvith  equitable  powers,  and  to 
engraft  a  system  of  equity  on  her  common  law,  "while  still 
keeping  the  two  systems  distinct.  Pennsylvania  held  out  still 
longer,  but  she  also  now  administers  equity,  as  indeed  every 
civilized  State  must  do  in  substance,  dispensing  it.  however, 
through  the  same  judges  as  those  who  appl}*  the  common  law, 
and  having  more  or  less  worked  it  into  the  texture  of  the  older 
system.  Special  chancery  courts  were  abolished  in  Xew  York, 
■where  they  had  flourished  and  enriched  American  jurispru- 
dence by  many  admirable  judgments,  by  the  democratizing 
constitution  of  1846;  and  they  now  exist  only  in  a  few  of  the 
States,  chiefly  older  Eastern  or  Southern  States,^  which,  in 
judicial  matters,  have  shown  themselves  more  conservative 
than  their  sisters  in  the  West.  In  four  States  only  (New 
York,  Xorth  Carolina.  California,  and  Idaho)  has  there  been 
a  complete  fusion  of  law  and  equity,  although  there  are  several 
others  which  have  provided  that  the  legislature  shall  abolish 
the  distinction  between  the  two  kinds  of  procedure.  Many, 
especially  of  the  newer  States,  provide  for  the  establishment 
of  tribunals  of  arbitration  and  conciliation. 

The  jurisdiction  of  the  State  courts,  both  civil  and  criminal, 
is  absolutely  unlimited,  i.e.  there  is  no  appeal  from  them  to 
the  Federal  courts,  except  in  certain  cases  specified  by  the 
Federal  Constitution,  being  cases  in  "which  some  point  of  Fed- 
eral law  arises.  Certain  classes  of  cases  are,  of  course,  reserved 
for  the  Federal  courts  and  in  some  the  State  courts  enjoy  a 
concurrent  jurisdiction.-  All  crimes,  except  such  as  are  pun- 
ishable under  some  Federal  statute,  are  justiciable  by  a  State 
court ;  and  it  is  worth  remembering  that  in  most  States  there 
exist  much  wider  facilities  for  setting  aside  the  verdict  of  a 
jury  finding  a  prisoner  guilty,  by  raising  all  sorts  of  points  of 
law,  than  are  permitted  by  the  law  and  practice  of  England,  or 
indeed  of  any  Eui'opean  country.  Such  facilities  have  been 
and  are  abused,  to  the  great  detriment  of  the  community. 

One  or  two  other  points  relating  to  law  and  justice  in  the 
States  require  notice.  Each  State  recognizes  the  judgments 
of  the  courts  of  a  sister  State,  gives  credit  to  its  public  acts 

1  District  chancery  courts  remain  in  Delaware,  New  Jersey,  Vermont,  Ten- 
nessee, Alabama,  Mississippi.  *  See  Chapter  XXII.  ante. 


CHAP.  XLii  THE   STATE   JUDICIARY  503 

and  records,  and  delivers  up  to  its  justice  any  fugitive  from  its 
jurisdiction,  permitting  liim,  moreover,  to  be  (if  necessary) 
tried  for  some  other  offence  than  that  in  respect  of  "n-hich  his 
extradition  was  obtained.  Of  course  the  courts  of  one  State 
are  not  bound  either  by  law  or  usage  to  follow  the  reported 
decisions  of  those  of  another  State.  They  use  such  decisions 
merely  for  their  own  enlightenment,  and  as  some  evidence  of 
the  common  law,  just  as  they  use  the  English  law  reports. 
Most  of  the  States  have  within  the  last  half  century  made 
sweeping  changes,  not  only  in  their  judicial  system,  but  in  the 
form  of  their  law.  They  have  revised  and  codified  their  stat- 
utes, a  corrected  edition  whereof  is  issued  every  few  years. 
They  have  in  many  instances  adojoted  codes  of  procedure,  and 
in  some  cases  have  even  enacted  codes  embodying  the  sub- 
stance of  the  common  law,  and  fusing  it  with  the  statutes. 
Such  codes,  however,  have  been  condemned  by  the  judgment 
of  the  abler  and  more  learned  part  of  the  profession,  as  render- 
ing the  law  more  uncertain  and  less  scientific.^  A  warm  con- 
troversy has  lately  been  raging  in  Xew  York  on  the  subject. 
But  with  the  masses  of  the  people  the  proposal  is  popular,  for 
it  holds  out  a  prospect,  unfortunately  belied  by  the  result  in 
States  which,  like  California,  have  tried  the  experiment,  of  a 
system  whose  simplicity  will  enable  the  layman  to  understand 
the  law,  and  render  justice  cheaper  and  more  speedy.  A 
really  good  code  might  have  these  happy  effects.  But  it  may 
be  doubted  whether  the  codifying  States  have  taken  the  steps 
requisite  to  secure  the  goodness  of  the  codes  they  enact.  And 
there  is  a  grave  objection  to  the  codification  of  State  law  which 
does  not  exist  in  a  country  like  England  or  France.  So  long 
as  the  law  of  a  State  remains  common  law,  i.e.  rests  upon 
custom  and  decisions  given  by  the  judges,  the  law  of  each 
State  tends  to  keep  in  tolerable  harmony  with  that  of  other 
States,  because  each  set  of  judges  is  enlightened  by  and  dis- 
posed to  be  influenced  by  the  decisions  of  the  Federal  courts 
and  of  judges  in  other  States.  But  when  the  whole  law  of  a 
State  has  been  enacted  in  the  form  of  a  code  all  existing 

1  This  is  perhaps  less  true  of  Louisiana,  where  the  civil  law  of  Rome,  which 
may  be  said  to  have  been  the  common  law  of  the  State,  offered  a  better  basis 
for  a  code  than  the  English  common  law  does.  The  Louisiana  code  is  based  on 
the  Code  Napoleon. 


504  THE   STATE   GOVERNMENTS  part  n 

divergences  between  one  State  and  another  are  sharpened  and 
perpetuated,  and  new  divergences  probably  created.  Hence 
codification  increases  the  variations  of  the  law  between  differ- 
ent States,  and  these  variations  may  impede  business  and  dis- 
turb the  ordinary  relations  of  life. 

Important  as  are  the  functions  of  the  American  judiciary,  the 
powers  of  a  judge  are  limited  by  the  State  Constitutions  in  a 
manner  surprising  to  Europeans.  He  is  not  generally  allowed 
to  charge  the  jury  on  questions  of  fact,^  but  only  to  state  the 
law.  He  is  sometimes  required  to  put  his  charge  in  writing. 
His  power  of  committing  for  contempt  of  court  is  often  re- 
stricted. Express  rules  forbid  him  to  sit  in  causes  wherein  he 
can  have  any  family  or  pecuniary  interest.  In  one  Constitu- 
tion his  punctual  attendance  is  enforced  by  the  provision  that 
if  he  does  not  arrive  in  court  within  half  an  hour  of  the  time 
fixed  for  the  sitting,  the  attorneys  of  the  parties  may  agree  on 
some  person  to  act  as  judge,  and  proceed  forthwith  to  the  trial 
of  the  cause.  And  in  California  he  is  not  allowed  to  draw  his 
salary  till  he  has  made  an  affidavit  that  no  cause  that  has  been 
submitted  for  decision  for  ninety  days  remains  undecided  in 
his  court.^ 

I  come  now  to  three  points,  which  are  not  only  important 
in  themselves,  but  instructive  as  illustrating  the  currents  of 
opinion  which  have  influenced  the  peoples  of  the  States.  These 
are  — 

The  method  of  appointing  the  judges. 

Their  tenure  of  office. 

Their  salaries. 

The  remarkable  changes  that  have  been  made  in  the  two 
former  matters,  and  the  strange  practice  which  now  prevails 
in  the  latter,  are  full  of  significance  for  the  student  of  mod- 
ern democracy,  full  of  warning  for  Europe  and  the  British 
colonies, 

1  A  frequent  form  is  that  in  the  Constitution  of  Tennessee  of  1870  ( Art.vi.  §  9) 
—  "Judges  shall  not  charge  juries  with  respect  to  matters  of  fact,  but  may 
state  the  testimony  and  declare  the  law."  Washington  forbids  even  comments 
on  facts.    Several  Constitutions  are  silent  on  the  point. 

2  The  Californian  judges  are  said  to  have  contrived  to  evade  this.  Idaho  has 
a  similar  provision,  but  gives  the  judge  only  thirty  days.  Montana  provides 
that  any  judicial  officer  who  absents  himself  more  than  sixty  consecutive  days 
from  the  State  shall  be  deemed  to  have  forfeited  his  office. 


I 


CHAP.  XLii  THE   STATE  JUDICIARY  505 

In  colonial  days  the  superior  judges  were  appointed  by  the 
Governors,  except  in  Rhode  Island  and  Connecticut,  where  the 
legislature  elected  them.  When,  in  and  alter  1776,  the  States 
formed  their  first  Constitutions,  four  States,^  besides  the  two 
just  named,  vested  the  appointment  in  the  legislature,  five^ 
gave  it  to  the  Governor  with  the  consent  of  the  council ; 
Delaware  gave  it  to  the  legislature  and  President  (  =  Governor) 
in  joint  ballot,  while  Georgia  alone  entrusted  the  election  to  the 
people. 

In  the  period  between  1812  and  1860,  when  the  tide  of 
democracy  was  running  strong,  the  function  was  in  several  of 
the  older  States  taken  from  the  Governor  or  the  legislature  to 
be  given  to  the  people  voting  at  the  polls ;  and  the  same  be- 
came the  practice  among  the  new  States  as  they  were  succes- 
sively admitted  to  the  Union.  Mississippi,  in  1832,  made  all 
her  judges  elected  by  the  people.  The  decisive  nature  of  the 
change  was  marked  by  the  great  State  of  New  York,  which,  in 
her  highly  democratic  Constitution  of  1846,  transferred  all 
judicial  appointments  to  the  citizens  at  the  polls. 

At  present  we  find  that  in  thirty-one  States,  the  judges  are 
elected  by  the  people.  These  include  nearly  all  the  Western 
and  South- Western  States,  besides  New  York,  Pennsylvania, 
and  Ohio. 

In  five  States  ^  they  are  elected  by  the  legislature. 

In  eight  States  *  they  are  appointed  by  the  Governor,  subject 
however  to  confirmation  either  by  the  council,  or  by  the  legis- 
lature, or  by  one  House  thereof. 

It  will  be  observed  that  nearly  all  the  thirteen  States  which 
do  not  appoint  the  judge  by  popular  election  either  belong  to 
the  original  thirteen  colonies  or  are  States  which  have  been 
specially  influenced  by  one  of  those  thirteen  (as,  for  instance, 
Maine  was  influenced  by  Massachusetts).  It  is  these  older 
commonwealths  that  have  clung  to  the  less  democratic  methods 
of  choosing  judicial  officers;  while  the  new  democracies  of  the 
West,  together  with  the  most  populous  States  of  the  East,  New 

1  Virginia,  New  Jersey,  North  Carolina,  ami  South  Carolina. 

2  Massachusetts,  New  Hampshire,  Pennsylvania,  IMaryland,  New  York. 

3  Rhode  Island,  Vermont,  Virginia,  South  Carolina,  Georgia. 

4  Massachusetts,  Connecticut,  New  Hampshire,  Delaware,  Maine,  Missis- 
sippi, New  Jersey,  Louisiana;  in  the  last  of  which,  however,  district  judges, 
and  in  Maine  and  Connecticut  probate  judges,  are  popularly  elected. 


506  THE   STATE   GOVEKNMENTS  part  ii 

York  and  Pennsylvania,  States  thoronghly  democratized  by 
their  great  cities,  have  thrown  this  grave  and  delicate  function 
into  the  rude  hands  of  the  masses,  that  is  to  say,  of  the  wire- 
pullers. 

Originally,  the  superior  judges  were,  in  most  States,  like 
those  of  England  since  the  Revolution  of  1688,  appointed  for 
life,  and  held  office  during  good  behaviour,  i.e.  were  removable 
only  when  condemned  on  an  impeachment,  or  when  an  address 
requesting  their  removal  had  been  presented  by  both  houses 
of  the  legislature.^  A  judge  may  be  removed  upon  such  an 
address  in  thirty-six  States,  a  majority  of  two-thirds  in  each 
house  being  usually  required.  The  salutary  provision  of  the 
British  Constitution  against  capricious  removals  has  been 
faithfully  adhered  to.  But  the  wave  of  democracy  has  in 
nearly  all  States  swept  away  the  old  system  of  life-tenure. 
Only  four  now  retain  it.^  In  the  rest  a  judge  is  elected  or 
appointed  for  a  term,  varying  from  two  years  in  Vermont  to 
twenty-one  years  in  Pennsylvania.  Eight  to  ten  years  is  the 
average  term  prescribed;  but  a  judge  is  always  re-eligible, 
and  likely  to  be  re-elected  if  he  be  not  too  old,  if  he  has  given 
satisfaction  to  the  bar,  and  if  he  has  not  offended  the  party 
which  placed  him  on  the  bench. 

The  salaries  paid  to  State  judges  of  the  higher  courts  range 
from  $8500  (£1700),  (chief-justice),  in  Pennsylvania,  and 
$10,000  (£2000)  in  New  York,  to  $2000  in  Oregon  and  $2500 
in  Vermont.  $4000  to  $5000  (-f  $500  to  the  chief  judge)  is 
the  average,  a  sum  which,  especially  in  the  greater  States,  fails 
to  attract  the  best  legal  talent.  To  the  rule  that  justices  of  the 
inferior  courts  receive  salaries  proportionately  lower,  there 
are  exceptions  in  large  cities,  where  judges  of  lower  tribunals, 
being  more  "  in  politics  "  can  sometimes  secure  salaries  quite 
out  of  proportion  to  their  status.^  In  general  the  new  West- 
ern   States   are   the   worst   paymasters,  their  population   of 

1  The  power  of  impeachment  remains  hut  is  not  often  used. 

2  Massachusetts,  Rhode  Island,  New  Hampshire,  Delaware,  all  of  them  among 
the  original  thirteen.  In  Rhode  Island  the  judges  are  in  theory  dismissihle  hy 
the  legislature.  In  Florida,  though  the  three  justices  of  the  supreme  court  are 
now  (Constitution  of  1886)  elected  hy  the  people,  the  seven  circuit  judges  are 
appointed  hy  the  governor. 

3  E.g.  the  police  justices  of  New  York  City  and  the  circuit  judges  of  Wayne 
County,  Michigan,  in  which  Detroit  stands. 


CHAP.  xLii  THE   STATE   JUDICIARY  507 

farmers  not  perceiving  the  importance  of  securing  high  ability 
on  the  bench,  and  deeming  $4000  a  larger  sum  than  a  quiet- 
living  man  can  need.  The  lowness  of  the  scale  on  which  the 
salaries  of  Federal  judges  are  fixed  confirms  this  tendency. 

Any  one  of  the  three  phenomena  I  have  described  —  popu- 
lar elections,  short  terms,  and  small  salaries  —  would  be 
suflficient  to  lower  the  character  of  the  judiciary.  Popular 
elections  throw  the  choice  into  the  hands  of  political  parties, 
that  is  to  say,  of  knots  of  wirepullers  inclined  to  use  every 
office  as  a  means  of  rewarding  political  services,  and  garrison- 
ing with  grateful  partisans  posts  which  may  conceivably  be- 
come of  political  importance.  Short  terms,  though  they  afford 
useful  opportunities  of  getting  rid  of  a  man  who  has  proved  a 
failure,  but  done  no  act  justifying  an  address  for  his  removal, 
oblige  the  judge  to  remember  and  keep  on  good  terms  with 
those  who  have  made  him  what  he  is,  and  in  whose  hands  his 
fortunes  lie.  They  induce  timidity,  they  discourage  independ- 
ence. And  small  salaries  prevent  able  men  from  offering  them- 
selves for  places  whose  income  is  perhaps  only  one-tenth  of 
what  a  leading  barrister  can  make  by  private  practice.  Putting 
the  three  sources  of  mischief  together,  no  one  will  be  surprised 
to  hear  that  in  many  of  the  American  States  the  State  judges 
are  men  of  moderate  abilities  and  scanty  learning,  inferior, 
and  sometimes  vastly  inferior,  to  the  best  of  the  advocates 
who  practise  before  them.  It  is  less  easy  to  express  a  general 
opinion  as  to  their  character,  and  particularly  as  to  what  is 
called,  even  in  America  where  fur  capes  are  not  worn,  the  "purity 
of  the  judicial  ermine."  Pecuniary  corruption  seems,  so  far 
as  a  stranger  can  ascertain,  to  be  rare,  perhaps  very  rare,  but 
there  are  other  ways  in  which  sinister  influences  can  play  on  a 
judge's  mind,  and  impair  that  confidence  in  his  impartiality 
which  is  almost  as  necessary  as  impartiality  itself.  And  apart 
from  all  questions  of  dishonesty  or  unfairness,  it  is  an  evil 
that  the  bench  should  not  be  intellectually  and  socially  at  least 
on  a  level  with  the  bar. 

The  mischief  is  serious.  But  I  must  own  that  it  is  smaller 
than  a  European  observer  is  prepared  to  expect.  In  most  of  the 
States  where  the  elective  system  prevails  the  bench  is  respect- 
able ;  and  in  some  it  is  occasionally  adorned  by  men  of  the 
highest  eminence.     Michigan,  for  instance,  has  during  many 


508  THE   STATE   GOVERNMENTS 


years  had  a  strong  and  respected  judiciary.  One  of  its  recent 
judges  sat  for  thirty-two  years,  having  been  re-elected  six 
times  in  succession.  Not  even  in  California  or  Arkansas  are 
the  results  so  lamentable  as  might  have  been  predicted.  New 
York  City,  under  the  dominion  of  the  Tweed  Eing,  has  af- 
forded the  only  instance  of  flagrant  judicial  scandals ;  and 
even  in  those  loathsome  days,  the  Court  of  Appeals  at  Albany, 
the  highest  tribunal  of  the  State,  retained  the  respect  of  good 
citizens.  Justice  in  civil  causes  between  man  and  man  is 
fairly  administered  over  the  whole  Union,  and  the  frequent 
failures  to  convict  criminals,  or  punish  them  when  convicted, 
are  attributable  not  so  much  either  to  weakness  or  to  partiality 
on  a  judge's  part  as  to  the  tenderness  of  juries  and  the  inordi- 
nate delays  and  complexity  of  criminal  procedure. 

Why  then  have  sources  of  evil  so  grave  failed  to  produce 
correspondingly  grave  results  ?  Three  reasons  may  be  sug- 
gested :  — 

One  is  the  co-existence  in  every  State  of  the  Federal  tribunals, 
presided  over  by  judges  who  are  usually  capable  and  always 
upright.  Their  presence  helps  to  keep  the  State  judges,  how- 
ever personally  inferior,  from  losing  the  sense  of  responsibility 
and  dignity  which  befits  the  judicial  office,  and  makes  even 
party  wirepullers  ashamed  of  nominating  as  candidates  men 
either  tainted  or  notoriously  incapable. 

Another  is  the  influence  of  a  public  opinion  which  not  only 
recognizes  the  interest  the  community  has  in  an  honest  admin- 
istration of  the  law,  but  recoils  from  turpitude  in  a  highly 
placed  official.  The  people  act  as  a  check  upon  the  party  con- 
ventions that  choose  candidates,  by  making  them  feel  that  they 
damage  themselves  and  their  cause  if  they  run  a  man  of  doubt- 
ful character,  and  the  judge  himself  is  made  to  dread  public 
opinion  in  the  criticisms  of  a  very  unreticent  press.  Demo- 
cratic theory,  which  has  done  a  mischief  in  introducing  the 
elective  system,  partly  cures  it  by  subjecting  the  bench  to  a 
light  of  publicity  which  makes  honesty  the  safest  policy. 
Whatever  passes  in  court  is,  or  may  be,  reported.  The  judge 
must  give  his  reasons  for  every  judgment  he  delivers. 

Lastly,  there  is  the  influence  of  the  bar,  a  potent  influence 
even  in  the  present  day,  when  its  role  is  less  brilliant  than  in 
former  generations.     The  local  party  leaders  who  select  the 


CHAP.  XLH  THE   STATE   JUDICIARY  509 

candidates  and  ''  run "  the  conventions  are  in  some  States 
mostly  lawyers  themselves,  or  at  least  in  close  relations  with 
some  leading  lawyers  of  the  State  or  district.  Now  lawyers 
have  not  onl}^  a  professional  dislike  to  the  entrusting  of  law 
to  incapable  hands,  the  kind  of  dislike  which  a  skilled  brick- 
layer has  to  seeing  walls  badly  laid,  but  they  have  a  personal 
interest  in  getting  fairly  competent  men  before  whom  to 
plead.  It  is  no  pleasure  to  them  to  have  a  judge  so  ignorant 
or  so  weak  that  a  good  argument  is  thrown  away  upon  him, 
or  that  you  can  feel  no  contidence  that  the  opinion  given  to  a 
client,  or  a  point  of  law  which  you  think  clear,  will  be  veri- 
fied by  the  decision  of  the  court.  Hence  the  bar  often  con- 
trives to  make  a  party  nomination  for  judicial  office  fall,  not 
indeed  on  a  leading  barrister,  because  a  leading  barrister  will 
not  accept  a  place  with  $4000  a  year,  when  he  can  make 
$14,000  by  private  practice,  but  on  as  competent  a  member 
of  the  party  as  can  be  got  to  take  the  post.  Having  con- 
stantly inquired,  in  every  State  I  visited  wherein  the  system 
of  popular  elections  to  judgeships  prevails,  how  it  happened 
that  the  judges  were  not  worse,  I  was  usually  told  that  the 
bar  had  interposed  to  prevent  such  and  such  a  bad  nomina- 
tion, or  had  agreed  to  recommend  such  and  such  a  person  as 
a  candidate,  and  that  the  party  had  yielded  to  the  wishes  of 
the  bar.  Occasionally,  when  the  wirepullers  are  on  their  good 
behaviour,  or  the  bar  is  exceptionally  public-spirited,  a  person 
will  be  brought  forward  who  has  no  claims  except  those  of  char- 
acter and  learning.  But  it  is  perhaps  more  common  for  the 
lawyers  to  put  pressure  on  one  or  other  party  in  nominating 
its  party  candidates  to  select  capable  ones.  Thus  when  a  few 
years  ago  the  Kepublicans  of  New  York  State  were  running 
bad  candidates,  some  leading  Republican  lawyers  persuaded 
the  Democrats  to  nominate  better  men,  and  thereupon  issued 
an  appeal  in  favour  of  these  latter,  who  were  accordingly  car- 
ried at  the  ensuing  election. 

These  causes,  and  especially  the  last,  go  far  to  nullify  the 
malign  effects  of  popular  election  and  short  terms.  But  they 
cannot  equally  nullify  the  effect  of  small  salaries.  Accord- 
ingly, while  corruption  and  partiality  are  uncommon  among 
State  judges,  inferiority  to  the  practising  counsel  is  a  con- 
spicuous and  frequent  fault. 


510  THE   STATE   G<:»VEByMENTS  part  ii 

One  is  obliged  to  speak  generally,  becaose  there  are  differ- 
ences between  the  Tarions  States  too  nnmerons  to  be  partic- 
nlaiized.  In  some,  especially  in  the  ]5forth-West,  the  tone  of 
the  party  managers  and  of  the  bar  is  respectable,  and  the 
sense  of  common  interest  makes  everybody  wish  to  have  as 
good  men  as  the  salaries  will  secure.  In  others  there  are 
traditions  which  even  unscrupulous  wirepullers  feax  to  violate. 
Pennsylvania,  for  instance,  though  her  legislature  and  her  city 
governments  have  been  impure,  and  little  under  the  influence 
of  the  bar,  stUl  generally  elects  cax>able  juc^s.*  The  scan- 
dals of  Barnard  and  Cardozo '  were  due  to  the  fact  that  the 
vast  and  ignorant  population  of  Xew  York  was  dominated  by 
a  gang  of  professional  politicians  who  neither  feared  the  good 
citizens  nor  regarded  the  bar. 

As  there  are  institutions  which  do  not  work  as  well  as  they 
theoretically  ought,  so  there  are  happily  others  which  work 
better.  The  sale  of  offices  under  the  old  monarchy  of  France, 
the  sale  of  commissions  in  the  English  army  till  1871,  the 
bribery  of  electors  which  in  England  was  once  so  rife,  the  sale 
of  advowsons  and  next  presentations  to  livings  which  still 
exists  in  the  Anglican  Church  Establishment,  were  or  are  all 
of  them  indefensible  in  theory,  all  mischievous  in  practice. 
But  none  of  them  did  so  much  harm  as  a  philosophical  observer 
would  have  predicted,  because  other  causes  were  at  work  to 
mitigate  and  minimize  their  evils. 

The  changes  of  the  last  twenty  years  have  been  on  the 
whole  for  the  better.  Some  States  which  had  vested  the  ap- 
pointment of  judges  in  the  legislature,  like  Connecticut,  or 
in  the  people,  like  Mississippi,  have  by  recent  constitutional 
amendments  or  new  Constitutions,  given  it  to  the  governor 
with  the  consent  of  the  legislature  or  of  one  house  thereof.' 
Others  have  raised  the  salaries,  or  lengthened  the  terms  of 
the  judges,  or,  like  Xew  York,  have  introduced  both  these 
reforms.  Between  1860  and  1891,  although  the  eight  Western 
new  States  admitted  within  that  period  have  all  vested  the 

1  Pennsylvania,  it  is  fair  to  say,  pays  better  than  most  States,  and  gives 
long  terms,  so  she  can  obtain  better  men  than  most. 

2  The  notorious  Tweed  Ring  judges  of  1869-71. 

3  In  Connf^cticut  the  change  was  made  at  the  instance  of  the  Bar  Associa- 
tion of  the  State,  which  had  seen  with  regret  that  the  dominant  party  in  the 
State  legislature  was  placing  inferior  men  on  the  bench. 


CHAP.  XLii  THE   STATE   JUDICL\EY  511 

choice  of  judges  in  the  people,  and  although  Kentucky  in  1891 
could  not  be  induced,  in  spite  of  the  decline  of  her  Bench  from 
its  ancient  fame,  to  restore  the  system  of  appointment  by  the 
Executive  which  had  prevailed  till  1850,  no  one  of  the  older 
States  except  Florida,  took  appointments  from  legislature  or 
governor  to  entrust  them  to  popular  vote.  In  this  point  at  least, 
the  tide  of  democracy  which  went  on  rising  for  so  many  years, 
seems,  if  not  receding,  at  least  to  have  touched  high-water 
mark.  The  American  people,  if  sometimes  bold  in  their  ex- 
periments, have  a  fund  of  good  sense  which  makes  them 
watchful  of  results,  and  not  unwilling  to  reconsider  their 
former  decisions. 


CHAPTER  XLIII 

STATE    FINANCE 

The  financial  systems  in  force  in  the  several  States  furnish 
one  of  the  widest  and  most  instructive  fields  of  study  that  the 
whole  range  of  American  institutions  presents  to  a  practical 
statesman,  as  well  as  to  a  student  of  comparative  politics.  It 
is  much  to  be  wished  that  some  person  equipped  with  the 
necessary  special  knowledge  could  survey  them  with  a  philo- 
sophic eye,  and  present  the  results  of  his  survey  in  a  concise 
form.  Prom  such  an  attempt  I  am  interdicted  not  only  by  the 
want  of  that  special  knowledge,  but  by  the  compass  of  the  sub- 
ject, and  the  difficulty  of  obtaining  in  Europe  adequate  mate- 
rials. These  materials  must  be  sought  not  so  much  in  the 
Constitutions  of  the  States  as  in  their  statutes,  and  in  the  re- 
ports presented  by  the  various  financial  officials,  and  by  the 
special  commissions  occasionally  appointed  to  investigate  the 
subject  or  some  branch  of  it.  All  I  can  here  attempt  is  to 
touch  on  a  few  of  the  more  salient  features  of  the  topic,  and  to 
cull  from  the  Constitutions  some  illustrations  of  the  dangers 
feared  and  the  remedies  desired  by  the  people  of  the  States. 
What  I  have  to  say  falls  under  the  heads  following : 

Purposes  for  which  State  revenue  is  required. 

Forms  of  taxation. 

Exemptions  from  taxation. 

Methods  of  collecting  taxes. 

Limitations  imposed  on  the  power  of  taxing. 

State  indebtedness. 

Restrictions  imposed  on  the  borrowing  power. 

I.  The  budget  of  a  State  is  seldom  large,  in  proportion  to 
the  wealth  of  its  inhabitants,  because  the  chief  burden  of 
administration  is  borne  not  by  the  State,  but  by  its  subdivi- 
sions, the  counties,  and  still  more  the  cities  and  townships. 

512 


I 


CHAP.  xLiii  STATE   FINANCE  513 

The  chief  expenses  which  a  State  undertakes  in  its  corporate 
capacity  are  —  (1)  The  salaries  of  its  officials,  executive  and 
judicial,  and  the  incidental  expenses  of  judicial  proceedings, 
such  as  payments  to  jurors  and  witnesses;  (2)  the  State  vol- 
unteer militia;  (3)  charitable  and  other  public  institutions, 
such  as  State  lunatic  asylums.  State  universities,  agricultural 
colleges,  etc. ;  ^  (4)  grants  to  schools ;  ^  (5)  State  prisons, 
comparatively  few,  since  the  prison  is  usually  supported  by 
the  county ;  (6)  State  buildings  and  public  works,  including, 
in  a  few  cases,  canals ;  (7)  payment  of  interest  on  State 
debts.  Of  the  whole  revenue  collected  in  each  State  under 
State  taxing  laws,  a  comparatively  small  part  is  taken  by  the 
State  itself  and  applied  to  State  i^urposes.^  In  1882  only  seven 
States  raised  for  State  purposes  a  revenue  exceeding  $2,000,- 
000.  In  1891  the  gross  revenue  of  New  York  was  $21,243,639 
(pop.  in  1890  6,000,000)  ;  of  Ohio,  $3,419,000  (pop.  3,680,000). 
These  are  small  sums  when  compared  either  with  the  popula- 
tion and  wealth  of  these  States,  or  with  the  revenue  raised  in 
them  by  local  authorities  for  local  purposes.  They  are  also 
small  in  comparison  with  what  is  raised  by  indirect  taxation  for 
federal  purposes. 

II.  The  National  government  raises  its  revenue  by  indirect 
taxation,  and  by  duties  of  customs  and  excise,*  though  it  has 
the  power  of  imposing  direct  taxes,  and  used  that  power  freely 

1  The  Constitutions  of  Louisiana  and  Georgia  allow  State  revenue  to  be  ap- 
plied to  the  supplying  of  wooden  legs  and  arms  to  ex-Confederate  soldiers ; 
Mississippi  directs  pensions  to  be  provided  for  them  or  their  widows. 

2  All  States  have  set  apart  for  the  support  of  schools,  agricultural  and 
mechanical  colleges,  and  other  educational  or  benevolent  institutions,  often  in- 
cluding universities,  a  considerable  fund  derived  from  the  sale  of  Western 
lands  granted  for  the  purpose  by  the  Federal  government  at  various  times,  be- 
ginning from  1785,  and  derived  in  some  cases  also  from  lauds  appropriated 
originally  by  the  State  itself  to  these  objects.  Down  to  1888,  77,488,192  acres 
had  been  granted  by  the  United  States  government  for  educational  purposes. 

3  In  the  State  of  Connecticut  (population  in  188.3  about  aWjOOO)  the  total 
revenue  raised  by  taxation  in  1883-84  was  5?8,524,77(5  (£1,800,000),  which  was 
collected  by  and  for  the  following  authorities  and  purposes :  — 

The  State $1,462,328 


Counties 

Towns 

Cities  and  boroughs 

School  districts 


1,131,766 

2,808,682 
1,636,057 
1,485,043 


4  Stamp  duties  were  also  resorted  to  during  the  Civil  War,  but  at  present 
none  are  levied  by  the  National  government. 

VOL.  I  2  L 


51-1  THE   STATE   GOVERNMENTS  part  n 

(hiring  the  War  of  Secession.  (The  sums  thus  raised  in  that 
way  have,  however,  been  since  refunded.)  State  revenue,  on 
the  other  hand,  arises  almost  wholly  from  direct  taxation,  since 
the  Federal  Constitution  forbids  the  levying  of  import  or  ex- 
port duties  by  a  State,  except  with  the  consent  of  Congress, 
and  directs  the  produce  of  any  such  duties  as  Congress  may 
permit  to  be  paid  into  the  Federal  treasury.  The  chief  tax  is 
in  every  State  a  property  tax,  based  on  a  valuation  of  property, 
and  generally  of  all  property,  real  and  personal,  within  the 
taxing  jurisdiction. 

The  valuation  is  made  by  officials  called  appraisers  or  as- 
sessors, appointed  by  the  local  communities,  thoiigh  under 
general  State  laws.^  It  is  their  duty  to  put  a  value  on  all  tax- 
able property ;  that  is,  speaking  generally,  on  all  property  of 
whatever  nature  which  they  can  discover  or  trace  within  the 
area  of  their  authority.  As  the  contribution,  to  the  revenues 
of  the  State  or  county,  leviable  within  that  area  is  proportioned 
to  the  amount  and  value  of  taxable  property  situate  within  it, 
the  local  assessors  have,  equally  with  the  property  owners, 
an  obvious  motive  for  valuing  on  a  low  scale,  for  by  doing  so 
they  relieve  their  community  of  part  of  its  burden.  The  State 
accordingly  endeavours  to  check  and  correct  them  by  creating 
what  is  called  a  Board  of  Equalization,  which  compares  and 
revises  the  valuations  made  by  the  various  local  officers,  with 
the  aim  of  having  taxable  property  in  each  locality  equally 
and  fairly  valued,  and  made  thereby  to  bear  its  due  share  of 
public  burdens.  Similarly  a  county  has  often  an  equalization 
board  to  supervise  and  adjust  the  valuations  of  the  towns  and 
cities  within  its  limits.  However,  the  existence  of  such  boards 
does  not  overcome  the  difficulty  of  securing  a  really  equal 
valuation,  and  the  honest  county  or  town  which  puts  its  prop- 
erty at  a  fair  value  suffers  by  paying  more  than  its  share. 
Valuations  are  generally  made  at  a  figure  much  below  the  true 
worth  of  property.  In  Connecticut,  for  instance,  the  law 
directs  the  market  price  to  be  the  basis,  but  real  estate  is 
valued  only  at  from  one-third  to  three-fourths  thereof.^     Indeed 

1  The  account  in  the  text  does  not,  of  course,  claim  to  be  true  in  all  particu- 
lars for  every  State,  but  only  to  represent  the  general  usage. 

-  The  special  commission  on  taxation  in  Connecticut  in  their  recent  singu- 
larly clear  and  interesting  report  (1887)  observe :  —  "  One  great  defect  in  the 
practical  execution  of  our  tax  laws  consists  in  inequalities  of  assessment  and 


CHAP.  XLni  STATE   FINANCE  615 

one  hears  everywhere  in  America  complaints  of  inequalities 
arising  from  the  varying  scales  on  which  valuers  proceed. 

A  still  more  serious  evil  is  the  fact  that  so  large  a  part  of 
taxable  property  escapes  taxation.  Lands  and  houses  cannot 
be  concealed ;  cattle  and  furniture  can  be  discovered  by  a  zeal- 
ous tax  officer.  But  a  great  part,  often  far  the  largest  part  of 
a  rich  man's  wealth,  consists  in  what  the  Americans  call  "  in- 
tangible property,"  notes,  bonds,  book  debts,  and  Western 
mortgages.^  At  this  it  is  practically  impossible  to  get,  except 
through  the  declaration  of  the  owner ;  and  even  if  the  owner 
is  required  to  present  his  declaration  of  taxable  property  upon 
oath,  he  is  apt  to  omit  this  kind  of  property.  The  Connecticut 
commissioners  report  that 

"  the  proportion  of  these  intangible  securities  to  other  taxable  property  has 
steadily  declined  from  year  to  year.  In  1855  it  was  nearly  10  per  cent  of 
the  whole,  in  1865  about  7h  per  cent,  in  1875  a  little  over  5  per  cent,  and  in 
1885  about  3J  per  cent.  Yet  during  the  generation  covered  by  these 
statistics  the  amount  of  State  railroad  and  municipal  bonds,  and  of  West- 
ern mortgage  loans  has  very  greatly  increased,  and  our  citizens  have,  in 
every  town  in  the  State,  invested  large  sums  in  them.  Why  then  do  so 
few  get  into  the  tax  list  ?  The  terms  of  the  law  are  plain,  and  the  pen- 
alties for  its  infringement  are  probably  as  stringent  as  the  people  will 
bear.  .  .  .  The  truth  is  that  no  system  of  tax  laws  can  ever  reach  directly 
the  great  mass  of  intangible  property.  It  is  not  to  be  seen,  and  its  pos- 
session, if  not  voluntarily  disclosed,  can  in  most  cases  be  only  the  subject 
of  conjecture.  The  people  also  in  a  free  government  are  accustomed  to 
reason  for  themselves  as  to  the  justice  and  validity  of  the  laws,  and  too 
apt  to  give  themselves  the  benefit  of  the  doubt  when  they  have  in  any  way 
the  power  to  construe  it  for  themselves.    Such  a  power  is  practically  given 

valuation.  This  shows  itself  especially  as  1)etween  the  different  towns.  .  .  . 
It  is  notorious  that  iu  few,  if  any,  towns  do  the  assessors  value  real  estate  at 
what  they  think  it  is  fairly  worth.  On  the  contrary,  they  generally  first  make 
this  appraisal  of  its  actual  value,  and  then  put  it  in  the  list  at  a  certain  propor- 
tion of  such  appraisal,  varying  from  SSs  to  75  per  cent.  Similar  reductions  are 
made  in  valuing  personal  property,  though  with  less  uniformity,  and  so  per- 
haps with  more  injustice  "  (p.  8).  "  Household  furniture  above  $!500  in  value 
constitutes  an  item  of  only  §9500  in  one  of  our  cities,  while  a  neighbouring 
town  of  not  more  than  half  the  population  returns  .?12,900"  (p.  IG). 

1  The  difficulty  does  not  arise  with  stock  or  shares  even  when  held  in  a  com- 
pany outside  a  State,  because  all  States  now  tax  corporations  or  companies 
within  their  jurisdiction,  and  the  principle  is  generally  (though  not  univer- 
sally) adopted,  that  where  stocks  in  a  corporation  outside  the  State  have  been 
so  taxed,  they  shall  not  be  again  taxed  in  the  hand  of  the  holder  of  the  stock, 
who  may  reside  within  the  State.  State  laws  and  tax  assessors  can  in  each 
State  succeed  in  reaching  the  property  of  the  corporation  itself. 


516  THE   STATE   GOVERNMENTS  pakt  ii 

in  the  form  of  oath  used  in  connection  witli  our  tax  lists,  since  it  refers 
only  to  such  property  of  the  parties  giving  them  in  as  is  taxable  according 
to  their  best  knowledge,  remembrance,  or  belief.  The  man  who  does  not 
believe  that  a  western  farm  loan  or  foreign  railroad  bond  {i.e.  bond  of  a 
company  outside  the  State)  ought  to  be  taxed,  is  too  often  ready  to  swear 
that  to  the  best  of  his  belief  it  is  not  liable  to  taxation.  .  .  .  As  the  law 
stands,  it  may  be  a  burden  on  the  conscience  of  many,  but  it  is  a  burden 
on  the  property  of  few,  not  because  there  are  few  who  ought  to  pay,  but 
because  there  are  few  who  can  be  made  to  pay.  Bonds  and  notes  held  by 
an  individual  are  for  the  most  part  concealed  from  the  assessors,  nor  do 
they  in  most  towns  make  much  effort  to  ascertain  their  existence,  i  The 
result  is  that  a  few  towns,  a  few  estates,  and  a  few  persons  of  a  high  sense 
of  honesty,  bear  the  entire  weight  of  the  tax.  Such  has  been  the  univer- 
sal result  of  similar  laws  elsewhere." 

A  comparison  of  the  tax  lists  with  the  probate  records  con- 
vinced the  commissioners  that,  whereas  in  1884  more  than  a 
third  of  the  whole  personal  property  assessed  in  the  State  of 
Connecticut  escaped  taxes,  the  proportion  not  reached  by  taxa- 
tion was  in  1886  much  greater ;  and  induced  them  to  recom- 
mend that  "all  the  items  of  intangible  property  ought  to  be 
struck  out  of  the  tax  list."  The  probate  inventories  of  the 
estates  of  deceased  persons,  and  the  last  returns  made  to  the 
tax  assessors  by  those  persons,  "show,  to  speak  of  it  mildly, 
few  points  of  contact."  Connecticut  is  a  commonwealth  in 
most  respects  above  the  average.  In  every  part  of  the  country 
one  hears  exactly  the  same.-    The  tax  returns  sent  in  are  rarely 

1  "A  person,  formerly  assessor  iu  one  of  our  leading  cities,  reported  that  he 
had  made  efforts  when  in  office  to  get  this  kind  of  property  into  the  '  grand 
list,'  and  succeeded  during  his  last  two  years  in  finding  out  and  adding  over 
$200,000  of  it ;  but  he  adds,  '  That  may  have  had  something  to  do  with  my 
defeat  when  election  came  around.'  "  So  in  West  Virginia  when  an  assessor 
objecting  to  a  merchant's  declaration  threatened  to  swear  the  merchant,  the 
latter  replied,  "  If  you  swear  me,  I'll  vote  against  you  next  time." 

2  The  West  Virginian  tax  commission,  in  1884,  says,  "  At  present  all  taxes 
from  invisible  property  come  from  a  few  conspicuously  conscientious  citizens, 
from  widows,  executors,  and  from  guardians  of  the  insane  and  infants ;  in  fact, 
it  is  a  comparatively  rare  thing  to  find  a  shrewd  trader  who  gives  in  any  con- 
siderable amount  of  notes,  stocks,  or  money.  The  truth  is,  things  have  come 
to  such  a  condition  in  West  Virginia  that,  as  regards  paying  taxes  on  this  kind 
of  property,  it  is  almost  as  voluntary  and  is  considered  pretty  much  in  the  same 
light  as  donations  to  the  neighbourhood  church  or  Sunday  school."  Reports 
of  commissioners  in  several  other  States  are  to  the  same  effect.  See,  espe- 
cially, the  Report  of  the  Tax  Commission  of  Baltimore,  1886 ;  and  the  supple- 
mentary Report  of  one  member  of  the  Maryland  Tax  Commission,  Mr.  Richard 
T.  Ely,  in  which  much  instructive  evidence  as  to  the  failure  in  various  States  of 
the  efforts  made  to  tax  intangible  property  has  been  collected  and  set  forth  (Bal- 


CHAP.  XLiii  STATE   FINANCE  517 

truthful ;  and  not  only  does  a  very  large  percentage  of  property 
escape  its  lawful  burdens,  but  "  the  demoralization  of  the  pub- 
lic conscience  by  the  frequent  administration  of  oaths,  so  often 
taken  only  to  be  disregarded,  is  an  evil  of  the  greatest  magni- 
tude. Almost  any  change  would  seem  to  be  an  improvement.^" 
There  is  probably  not  a  State  in  the  Union  of  which  the 
same  thing  might  not  be  said.  In  Ohio,  for  instance,  the 
Governor  remarks  in  a  special  message  of  April  1887 : 

"  The  great  majority  of  the  personal  property  of  this  State  is  not 
returned,  but  entirely  and  fraudulently  withheld  from  taxation.  The 
idea  seems  largely  to  prevail  that  there  is  injustice  and  inequality  in  tax- 
ation, and  that  there  is  no  harm  in  cheating  the  State,  although  to  do  so 
a  false  return  must  be  made  and  perjury  committed.  This  offence 
against  tlie  State  and  good  morals  is  too  frequently  committed  by  men  of 
wealtii  and  reputed  high  character,  and  of  corresponding  position  in 
society." 

In  New  York  there  was  a  shrinkage  in  the  valuation  of 
personalty  from  1871  to  1884  of  $107,184,371,  and  in  1888 
personalty  paid  only  10  per  cent,  realty  90  per  cent,  of  the 
State  taxation.  In  California  personal  property  was  assessed 
at  $220,000,000  in  1872,  and  at  f  164,000,000  in  1887,  while  in 
the  same  fifteen  years  real  estate  rose  from  $417,000,000  to 
$791,000,000. 

I  have  dwelt  upon  these  facts,  not  only  because  they 
illustrate  the  di£&culties  inherent  in  a  property  tax,  difficulties 

timore,  1888) .  A  Boston  commission  reported,  in  1891,  in  favour  of  taxing  real 
estate  only ;  arguing  that  under  the  laws  of  Massachusetts  taxing  personalty, 
much  property  was  really  twice  taxed. 

1  Judge  Foster,  in  the  ease  of  Kirtland  v.  Hotchkiss,  42  Conn.  Rep.,  p.  449. 
So  Mr.  David  A.  Wells,  in  his  report  as  Special  Tax  Commissioner  to  the  New 
York  Legislature,  says:  "  Oaths  as  a  matter  of  restraint  or  as  a  guarantee  of 
truth  in  respect  to  official  statements  have  in  great  measure  ceased  to  be 
effectual;  or  in  other  words,  perjury,  direct  or  constructive,  has  become  so 
common  as  to  almost  cease  to  occasion  notice.  This  is  the  all  but  unanimous 
testimony  of  officials  who  have  of  late  had  extensive  experience  in  the  admin- 
istration of  both  the  national  and  State  revenue  laws." 

Professor  E.  A.  Seligmann,  in  a  valuable  article  in  the  Political  Science 
QuarterUj  for  March  18'J0,  sums  up  the  case  against  a  property  tax  as  follows: 

"The  property  tax  of  to-day,  because  of  its  attempt  to  tax  intangible  as 
well  as  tangible  things,  sins  against  the  cardinal  rules  of  uniformity,  of 
eqiiality,  and  of  universality  of  taxation.  It  puts  a  premium  on  dishonesty  and 
debauches  the  public  conscience.  It  reduces  deception  to  a  system  and  makes 
a  science  of  knavery.  It  presses  hardest  on  those  least  able  to  pay.  It  imposes 
double  taxation  on  one  man  and  grants  entire  immunity  to  the  next." 


518  THE    STATE   GOVERNMENTS  part  ii 

of  course  greater  where  such  independent  taxing  authorities 
as  the  several  States  are  close  together,  but  also  because  they 
help  to  explain  the  occasional  bitterness  of  feeling  among  the 
American  farmers  as  well  as  the  masses  against  capitalists, 
much  of  whose  accumulated  wealth  escapes  taxation,  while 
the  farmer  who  owns  his  land,  as  well  as  the  working  man 
who  puts  his  savings  into  the  house  he  lives  in,  is  assessed 
and  taxed  upon  this  visible  property.  We  may,  in  fact,  say 
of  most  States,  that  under  the  present  system  of  taxation  the 
larger  is  the  city  the  smaller  is  the  proportion  of  personalty 
reached  by  taxation  (since  concealment  is  easier  in  large  com- 
munities), and  the  richer  a  man  is  the  smaller  in  proportion 
to  his  property  is  the  contribution  he  pays  to  the  State.^  Add 
to  this  that  the  rich  man  bears  less,  in  proportion  to  his 
income,  of  the  burden  of  indirect  taxation,  since  the  protective 
tariff  raises  the  price  not  merely  of  luxuries  but  of  all  com- 
modities, except  some  kinds  of  food." 

1  In  Iowa  the  State  Auditor  reported  some  years  ago  that  ' '  the  class  of 
property  that  escapes  taxation  most  is  that  which  pays  the  largest  dividend"  ; 
and  in  Kentucky  that  "the  property  of  the  small  owner  is  as  a  rule  valued 
by  a  far  higher  standard  than  that  of  his  wealthy  neighbour." 

2  An  experienced  Massachusetts  publicist  writes  to  me  apropos  of  the 
passage  in  the  text:  "  If  one  State  compels  a  man  to  make  a  full  declaration 
of  his  personal  property  for  taxation  and  another  does  not  there  will  be  a 
tendency  for  capital  to  flow  from  the  former  to  the  latter.  In  Vermont,  for 
instance,  a  law  has  been  passed  requiring  every  person  under  penalty  to  make 
sworn  returns  of  his  moveable  property,  and  the  result  is  that  capital  seems  to 
be  leaving  that  State. 

"  In  New  York  the  law  taxes  personal  property,  but  if  a  person  makes  no 
return  the  assessors  are  instructed  to  '  doom '  him  according  to  the  best  of  their 
knowledge  and  belief ;  and  the  amount  becomes  a  matter  of  '  trade.'  Returns 
are  practically  made  only  by  trustees  and  corporations,  not  by  capitalists.  It 
is  a  case  of  bad  law  tempered  by  violation. 

"In  Massachusetts  the  practice  in  each  town  depends  mainly  upon  the 
assessors.  In  Boston  the  chief  office  having  resolved  to  let  no  one  escajjc,  has 
for  twenty  years  gone  on  increasing  the  assessment  each  year  till  the  victini 
makes  a  return.  At  first,  men  had  some  scruple  about  leaving  the  city  before 
1st  May  (the  date  of  residence  when  taxes  are  assessed),  but  these  were  soon 
overcome,  and  now  nearly  all  the  capitalists  have  country  places  where  they 
retire  at  a  still  inclement  season,  and  are  received  with  open  arms  by  the  local 
assessors,  who  accept  just  what  they  choose  to  pay,  wliile  their  political 
influence,  their  taxes,  and  their  public  donations  are  lost  to  the  city.  Occa- 
sionally the  assessors  iu  a  country  town  take  it  into  their  heads  to  apply  the 
screw  after  the  fashion  of  the  city  authority,  and  then  there  is  a  fine  turmoil. 
As  the  rich  men  generally  live  in  one  quarter  of  the  (country)  town,  the  next 
step  is  to  apply  to  the  legislature  to  get  the  town  divided,  and  the  vicinity  of 
Boston  is  thus  being  gradually  cut  up  into  small  pieces." 


CHAP.  xLiii  STATE   FINANCE  619 

Besides  the  property  tax,  which  is  the  main  source  of 
revenue,  the  States  often  levy  taxes  on  particular  trades  or 
occupations/  sometimes  in  the  form  of  a  licence  tax,  taxes  on 
franchises  enjoyed  by  a  corporation,  taxes  on  railroad  stock, 
or  (in  a  few  States)  taxes  on  collateral  inheritances.  Com- 
paratively little  resort  has  hitherto  been  had  to  the  so-called 
"death-duties,"  i.e.  probate,  legacy,  and  succession  duties,  nor 
is  much  use  made  of  an  income  tax.  Five  States,  however, 
authorize  it.  As  regards  poll  taxes  there  is  much  variety  of 
practice.  Some  State  Constitutions  {e.g.  Ohio)  forbid  such  an 
impost,  as  "grievous  and  oppressive";  others  direct  it  to 
be  imposed,  or  {e.g.  North  Dakota)  allow  the  legislature  to 
impose  it,  while  about  one  half  do  not  mention  it.  Where  it 
exists,  there  is  sometimes  a  direction  that  it  shall  be  applied 
to  schools  or  some  other  specified  useful  purpose,  such  as  poor 
relief,  so  as  to  give  the  poor,  who  perhaps  pay  no  other  direct 
tax,  a  sense  of  their  duty  to  contribute  to  public  objects,  and 
especially  to  those  in  whose  benefits  they  directly  share.  The 
amount  of  a  poll  tax  is  always  small,  ^1  or  $2:  sometimes  (as 
in  Tennessee)  the  payment  of  it  is  made  a  pre-requisite  to  the 
exercise  of  the  electoral  franchise.  It  is,  I  think,  never 
imposed  on  women  or  minors. 

In  some  States  "  foreign  "  corporations,  i.e.  those  chartered 
by  or  domiciled  in  another  State,  are  taxed  more  heavily  than 
domestic  corporations.  New  Hampshire,  by  taxing  "  foreign  " 
insurance  companies,  succeeded  in  driving  them  out  of  its  limits. 

I  have  found  no  instance  of  a  progressive  inheritance  duty, 
or  of  a  progressive  income  tax  such  as  some  of  the  Swiss  can- 

1  North  Carolina  empowers  its  legislature  to  tax  all  trades,  professions, 
and  franchises.  Arkansas  in  1868  (Article  x.  §  17)  directed  its  general 
assembly  to  "  tax  all  privileges,  pursuits,  and  occupations  that  are  of  no  real 
use  to  society,"  adding  that  all  others  shall  be  exempt.  But  having  apparently 
found  it  hard  to  determine  which  occupations  are  useless,  she  dropped  the 
direction  in  her  Constitution  of  1874,  and  now  merely  empowers  the  taxation 
of  "hawkers,  pedlers,  ferries,  exhibitions,  and  privileges." 

The  persons  or  things  on  whom  licence  taxes  or  occupation  taxes  may  be 
Imposed  are  the  following,  some  being  mentioned  in  one  State  Constitution, 
some  in  another — Pedlers,  hawkers,  auctioneers,  brokers,  pawnbrokers, 
merchants,  commission  merchants,  "persons  selling  by  sample,"  sho\\Tnen, 
jugglers,  innkeepers,  toll  bridges,  ferries,  telegraphs,  express  agents  {i.e. 
parcels'  delivery),  grocery  keepers,  liquor  dealers,  insurance,  vendors  of 
patents,  persons  or  corporations  using  franchises  or  privileges,  banks,  rail- 
roads, destructive  domestic  animals,  dealers  in  "options"  or  "  futures." 


520  THE   STATE   GOVERNMENTS  part  n 

tons  have  imposed.     California,  however,  in  her  Constitution 
of  1879  has  attempted  to  tax  the  same  property  twice  over. 

There  is  always  a  desire  to  hit  incorporated  companies,  espe- 
cially banks  and  railroads.^  The  newer  Constitutions  often 
direct  the  legislature  to  see  that  such  undertakings  are  duly 
taxed,  sometimes  forbidding  it  ever  to  deprive  itself  of  the 
power  of  taxing  any  corporation,  doubtless  from  the  fear  that 
these  powerful  bodies  may  purchase  from  a  pliant  legislature 
exemption  from  civic  burdens.  The  methods,  however,  of  tax- 
ing corporations  vary  greatly  from  State  to  State,  and  are  at 
present  in  a  wholly  chaotic  condition. 

III.  In  most  States,  certain  descriptions  of  property  are 
exempted  from  taxation,  as  for  instance,  the  buildings  or  other 
property  of  the  State,  or  of  any  local  community,  burying 
grounds,  schools  and  universities,  educational,  charitable,  scien- 
tific, literary,  or  agricultural  institutions  or  societies,  public 
libraries,  churches  and  other  buildings  or  property  used  for 
religious  purposes,  cemeteries,  household  furniture,  farming 
implements,  deposits  in  savings  banks.  Often  too  it  is  provided 
that  the  owner  of  personal  property  below  a  certain  figure  shall 
not  pay  taxes  on  it,  and  occasionally  ministers  of  religion  are 
allowed  a  certain  sum  (as  for  instance  in  New  York,  $1500) 
free  from  taxation. 

No  State  can  tax  any  bonds,  debt  certificates,  or  other 
securities  issued  by,  or  under  the  authority  of,  the  Federal 
government,  including  the  circulating  notes  commonly  called 
"  greenbacks."  This  has  been  held  to  be  the  law  on  the  con- 
struction of  the  Federal  Constitution,  and  has  been  so  declared 
in  a  statute  of  Congress.  Many  intricate  questions  have  arisen 
on  this  doctrine  ;  which,  moreover,  introduces  an  element  of 
difficulty  into  State  taxation,  because  persons  desiring  to  escape 
taxation  are  apt  to  turn  their  property  into  these  exempted 
forms  just  before  they  make  their  tax  returns. 

IV.  Some  of  the  State  taxes,  such,  for  instance,  as  licence 
taxes,  or  a  tax  on  corporations,  are  directly  levied  by  and  paid 
to  the  State  officials.  But  others,  and  particularly  the  property 
tax,  which  forms  so  large  a  source  of  revenue,  are  collected 

1  As  to  banks,  see  Ohio  Constitution  of  1851,  Article  xii.  §  3,  and  an  article 
on  the  taxation  of  corporations  by  Mr.  E.  A.  Seligmann  in  Political  Science 
Quarterly  for  June  1890.  Banks  were  an  object  of  as  much  popular  dislike 
fifty  years  ago  as  railroads  are  now. 


CHAP.  XLiii  STATE   FINANCE  521 

by  the  local  authorities.  The  State  having  determined  what 
income  it  needs,  apportions  this  sum  among  the  counties,  or  in 
New  England,  sometimes  directly  among  the  towns,  in  propor- 
tion to  their  paying  capacity,  that  is,  to  the  value  of  the  prop- 
erty situate  within  them.^  So  similarly  the  counties  apportion 
not  only  what  they  have  to  pay  to  the  State,  but  also  the  sum 
they  have  to  raise  for  county  purposes,  among  the  cities  and 
townships  within  their  area,  in  proportion  to  the  value  of  their 
taxable  property.  Thus,  when  the  township  or  city  author- 
ities assess  and  collect  taxes  from  the  individual  citizen,  they 
usually  collect  at  one  and  the  same  time  three  distinct  sets  of 
taxes,  the  State  tax,  the  county  tax,  and  the  city  or  town- 
ship tax.  Eetaining  the  latter  for  local  purposes,^  they  hand 
on  the  two  former  to  the  county  authorities,  who  in  turn  retain 
the  county  tax,  handing  on  to  the  State  what  it  requires. 
Thus  trouble  and  expense  are  saved  in  the  process  of  collect- 
ing, and  the  citizen  sees  in  one  tax-paper  all  he  has  to  pay. 

V.  Some  States,  taught  by  their  sad  experience  of  reckless 
legislatures,  limit  by  their  Constitutions  the  amount  of  taxation 
which  may  be  raised  for  State  purposes  in  any  one  year.  Thus 
Texas  in  1876  forbade  the  State  property  tax  to  exceed  one  half 
per  cent  on  the  valuation  (exclusive  of  the  sum  needed  to  pay 
interest  on  the  State  debt),  and  has  since  reduced  the  per- 
centage to  .35.^  North  Dakota  (1889)  fixes  .4,  Montana  .3,  as 
the  percentage.  A  similar  provision  exists  in  Missouri,  and 
in  some  other  Southern  or  Western  States.  We  shall  see 
presently  that  this  method  of  restriction  has  been  more  exten- 
sively applied  to  cities  and  other  subordinate  communities. 
Sometimes  we  find  directions  that  no  greater  revenue  shall  be 
raised  than  the  current  needs  of  the  State  require,  a  rule 
which  Congress  would  have  done  well  to  observe,  seeing  that 
a  surplus  revenue  invites  extravagant  and  reckless  expendi- 
ture and  gives  opportunity  for  legislative  jobbery.* 

1  As  ascertained  by  the  assessors  and  board  of  equalization. 

2  Sometimes,  however,  the  town  or  township  in  its  corporate  capacity  pays 
the  State  its  share  of  the  State  tax,  instead  of  collecting  it  specifically  from 
individual  citizens. 

3  In  spite  of  this  Texas  had  in  March  1888  a  surplus  of  $2,000,000  in  her  State 
treasury,  so  that  the  Governor  was  obliged  to  summon  the  legislature  in  extra 
session  to  dispose  of  this  surplus  and  prevent  the  growth  of  another. 

4  Sir  T.  More  in  his  Utopia  mentions  with  approval  a  law  of  the  Macarians 
forbidding  the  king  to  have  ever  more  than  £1000  in  the  public  treasury. 


522  THE   STATE   GOVERNMENTS  part  n 

It  may  be  thought  that  the  self-interest  of  the  people  is  suffi- 
cient to  secure  economy  and  limit  taxation.  But,  apart  from 
the  danger  of  a  corrupt  legislature,  it  is  often  remarked  that  as 
in  many  States  a  large  proportion  of  the  voters  do  not  pay 
State  taxes,  the  power  of  imposing  burdens  lies  largely  in  the 
hands  of  persons  who  have  no  direct  interest,  and  suppose 
themselves  to  have  no  interest  at  all,  in  keeping  down  taxes 
which  they  do  not  pay.  So  far,  however,  as  State  finance  is 
concerned,  this  has  been  no  serious  source  of  mischief,  and 
more  must  be  attributed  to  the  absence  of  efficient  control 
over  expenditure,  and  to  the  fact  that  (as  in  Congress)  the 
committee  which  reports  on  appropriations  of  the  revenue  is 
distinct  from  that  which  deals  with  the  raising  of  revenue  by 
taxation. 

Another  illustration  of  the  tendency  to  restrict  the  improvi- 
dence of  representatives  is  furnished  by  the  prohibitions  in 
many  Constitutions  to  pass  bills  appropriating  moneys  to  any 
private  individual  or  cori^oration,  or  to  authorize  the  payment 
of  claims  against  the  State  arising  under  any  contract  not 
strictly  and  legally  binding,  or  to  release  the  claims  which  the 
State  may  have  against  railroads  or  other  corporations.  One 
feels,  in  reading  these  multiform  provisions,  as  if  the  legis- 
lature was  a  rabbit  seeking  to  issue  from  its  burrow  to  ravage 
the  crops  wherever  it  could,  and  the  people  of  the  State  were 
obliged  to  close  every  exit,  because  they  could  not  otherwise 
restrain  its  inveterate  propensity  to  mischief. 

VI.  Nothing  in  the  financial  system  of  the  States  better 
deserves  attention  than  the  history  of  the  State  debts,  their 
portentous  growth,  and  the  efforts  made,  when  the  people  had 
taken  fright,  to  reduce  their  amount,  and  to  set  limits  to  them 
in  the  future. 

Sixty  to  seventy  years  ago,  when  those  rich  and  ample  West- 
ern lands  which  now  form  the  States  of  Ohio,  Indiana,  Illinois, 
Michigan,  and  Missouri  were  being  opened  up  and  settled,  and 
again  forty  years  ago,  when  the  railway  system  was  in  the 
first  freshness  of  its  marvellous  extension,  and  was  filling  up 
the  lands  along  the  Mississippi  at  an  increasingly  rapid  rate, 
every  one  was  full  of  hope ;  and  States,  counties,  and  cities, 
not  less  than  individual  men,  threw  themselves  eagerly  into 
the  task  of  developing  the  resources  which  lay  around  them. 


CHAP.  XLIII 


STATE  FINANCE  523 


The  States,  as  well  as  these  minor  communities,  set  to  work  to 
make  roads  and  canals  and  railways ;  they  promoted  or  took 
stock  in  trading  companies,  they  started  or  subsidized  banks, 
they  embarked  in,  or  pledged  their  credit  for,  a  hundred  enter- 
prises which  they  were  ill-litted  to  conduct  or  supervise.  Some 
undertakings  failed  lamentably,  while  in  others  the  profits 
were  grasped  by  private  speculators,  and  the  burden  left  with 
the  public  body.  State  indebtedness,  which  in  1825  (when 
there  were  twenty-four  States)  stood  at  an  aggregate  over  the 
whole  Union  of  $12,790,728  (£2,500,000),  had  in  1842  reached 
$203,777,916  1  (£40,000,000),  in  1870  $352,866,898  (£70,000,- 
000). 

A  part  of  the  increase  between  the  latter  years  was  due  to 
loans  contracted  for  the  raising  and  equipping  of  troops  by 
many  Northern  States  to  serve  in  the  Civil  War,  the  intention 
being  to  obtain  ultimate  reimbursement  from  the  national 
treasury.  There  was  also  a  good  deal,  in  the  way  of  executed 
works,  to  show  for  the  money  borrowed  and  expended,  and  the 
States  (in  1870  thirty-seven  in  number)  had  grown  vastly  in 
taxable  property.  Nevertheless  the  huge  and  increasing  total 
startled  the  people,  and,  as  everybody  knows,  some  States  repu- 
diated their  debts.  The  diminution  in  the  total  indebtedness 
of  1880,  which  stood  at  $290,326,643,  and  was  the  indebted- 
ness of  thirty-eight  States  and  three  Territories,  is  partly  due 
to  this  repudiation.  In  1890  the  total  (now  of  forty-four 
States  and  two  Territories)  stood  at  $223,107,883.^  Even  after 
the  growth  of  State  debts  had  been  checked  (in  the  way  to  be 
presently  mentioned),  minor  communities,  towns,  counties,  but 
above  all,  cities  trod  in  the  same  path,  the  old  temptations 
recurring,  and  the  risks  seeming  smaller  because  a  munici- 
pality had  a  more  direct  and  close  interest  than  a  State  in 
seeing  that  its  money  or  credit  was  well  applied.  Municipal 
indebtedness  has  advanced,  especially  in  the  larger  cities,  at  a 
dangerously  swift  rate.  Of  the  State  and  county  debt  much 
the  largest  part  had  been  incurred  for,  or  in  connection  with, 
so-called    "internal   improvements";   but   of    the    city   debt, 

1  In  1838  it  was  estimated  that  of  the  total  deht  of  the  States,  then  calcu- 
lated at  S170,800,000  (say  £35,000,000),  $00,200,000  had  been  incurred  for 
canals,  $42,800,000  for  railroads,  and  $52,000,000  for  banking. 

2  I  take  these  figures  (which  are  minus  sinking  fund)  from  the  bulletin  of 
the  census  of  1890. 


524  THE  STATE   GOVERNMENTS  part  n 

though  a  part  was  due  to  the  bounties  given  to  volunteers  in 
the  Civil  War,  much  must  be  set  down  to  extremely  lax  and 
wasteful  administration,  and  much  more  to  mere  stealing,  prac- 
tised by  methods  to  be  hereafter  explained,  but  facilitated  by 
the  habit  of  subsidizing,  or  taking  shares  in,  corporate  enter- 
prises which  had  excited  the  hopes  of  the  citizens. 

VII.  The  disease  spread  till  it  terrified  the  patient,  and  a 
remedy  was  found  in  the  insertion  in  the  Constitutions  of  pro- 
visions limiting  the  borrowing  powers  of  State  legislatures. 
Fortunately  the  evil  had  been  perceived  in  time  to  enable  the 
newest  States  to  profit  by  the  experience  of  their  predecessors. 
For  the  last  thirty-five  years,  Avhenever  a  State  has  enacted  a 
Constitution,  it  has  inserted  sections  restricting  the  borrowing 
powers  of  States  and  local  bodies,  and  often  also  providing 
for  the  discharge  of  existing  liabilities.  Not  only  is  the  pass- 
ing of  bills  for  raising  a  State  loan  surrounded  with  special 
safeguards,  such  as  the  requirement  of  a  two- thirds  majority 
in  each  house  of  the  legislature ;  not  only  is  there  a  prohibi- 
tion ever  to  borrow  money  for,  or  even  to  undertake,  internal 
improvements  (a  fertile  source  of  jobbery  and  waste,  as  the 
experience  of  Congress  shows)  ;  not  only  is  there  almost  inva- 
riably a  provision  that  whenever  a  debt  is  contracted  the  same 
Act  shall  create  a  sinking  fund  for  paying  it  off  within  a  few 
years,  but  in  most  Constitutions  the  total  amount  of  the  debt 
is  limited,  and  limited  to  a  sum  beautifully  small  in  proportion 
to  the  population  and  resources  of  the  State. ^  Thus  Wisconsin 
fixes  its  maximum  at  $200,000  (£40,000)  ;  Minnesota  and  Iowa 
at  $250,000,  Ohio  at  $750,000;  Wyoming  at  one  and  Idaho  at 
one  and  one-half  per  cent  of  the  assessed  value  of  taxable 
property,  Nebraska  and  Montana  at  $100,000;  prudent  Oregon 
at  $50,000 ;  and  the  great  and  wealthy  State  of  Pennsylvania, 
with  a  population  now  exceeding  5,300,000  (Constitution  of 
1873,  Art.  ix.  §  4),  at  $1,000,000.^ 

1  Debts  incurred  for  the  purpose  of  suppressing  insurrection  or  repelling 
invasion  are  excepted  from  these  limitations. 

2  New  York  (Constitution  of  1846,  Art.  vii.  §§  10-12)  also  names  a  million  of 
dollars  as  the  maximum,  but  permits  laws  to  be  passed  raising  loans  for  "  some 
single  work  or  object,"  provided  that  a  tax  is  at  the  same  time  enacted  suffi- 
cient to  pay  off  this  debt  in  eighteen  years ;  and  that  any  such  law  has  been 
directly  submitted  to  the  people  and  approved  by  them  at  an  election.  Simi- 
lar provisions  permitting  increase  by  special  popular  vote  are  frequent  in 
recent  Constitutions. 


CHAP.  XLiii  STATE   FINANCE  525 

In  four-fifths  of  the  States,  including  all  those  with  recent 
Constitutions,  the  legislature  is  forbidden  to  "  give  or  lend  the 
credit  of  the  State  in  aid  of  any  person,  association,  or  corpo- 
ration, whether  municij)al  or  other,  or  to  pledge  the  credit  of 
the  State  in  any  manner  whatsoever  for  the  payment  of  the 
liabilities  present  or  prospective  of  any  individual  association, 
municipal,  or  other  corporation,"  ^  as  also  to  take  stock  in  a 
corporation,  or  otherwise  embark  in  any  gainful  enterprise. 
Many  Constitutions  also  forbid  the  assumption  by  the  State 
of  the  debts  of  any  individual  or  municipal  corporation. 

The  care  of  the  people  for  their  financial  freedom  and  safety 
extends  even  to  local  bodies.  Many  of  the  recent  Constitu- 
tions limit,  or  direct  the  legislature  to  limit,  the  borrowing 
powers  of  counties,  cities,  or  towns,  sometimes  even  of  incor- 
porated school  districts,  to  a  sum  not  exceeding  a  certain  per- 
centage on  the  assessed  value  of  the  taxable  property  within 
the  area  in  question.  This  percentage  is  usually  five  per  cent 
(e.g.  Illinois,  Constit.  of  1870,  Art.  ix.  §  12),  sometimes  (e.g. 
Pennsylvania,  Constit.  of  1873,  Art.  ix.  §8)  seven  per  cent; 
New  York  (Amend,  of  1884),  ten  per  cent;  Wyoming  (except 
for  water  or  sewerage  works)  two  per  cent.  Sometimes  also 
the  amount  of  the  tax  leviable  by  a  local  authority  in  any  year 
is  restricted  to  a  definite  sum  —  for  instance,  to  one  half  per 
cent  on  the  valuation.^  And  in  all  the  States  but  seven,  cities, 
counties,  or  other  local  incorporated  authorities  are  forbidden 
to  pledge  their  credit  for,  or  undertake  the  liabilities  of,  or  take 
stock  in,  or  otherwise  give  aid  to,  any  undertaking  or  company. 
Sometimes  this  prohibition  is  absolute ;  sometimes  it  is  made 
subject  to  certain  conditions,  and  may  be  avoided  by  their 
observance.  For  instance,  there  are  States  in  which  the  peo- 
ple of  a  city  can,  by  special  vote,  carried  by  a  two-thirds  ma- 
jority, or,  a  three-fifths  majority,  or  (in  Colorado)  by  a  bare 
majority  of  the  tax-payers,  authorize  the  contracting  of  a  debt 
which  the  municipality  could  not  incur  by  its  ordinary  organs 
of  government.  Sometimes  there  is  a  direction  that  any  mu- 
nicipality creating  a  debt  must  at  the  same  time  provide  for 

1  Constitution  of  Missouri  of  1875  (Art.  iv.  §  45),  a  Constitution  whose  pro- 
visions on  financial  matters  and  restrictions  on  the  legislature  are  copious  and 
instructive.  Similar  words  occur  in  nearly  all  Western  and  Southern,  as  well 
as  in  some  of  the  more  recent  Eastern  Constitutions. 

^  See  the  elaborate  provisions  of  the  Constitution  of  Missouri  of  1875. 


526  THE   STATE   GOVERNMENTS  part  ii 

its  extinction  by  a  sinking  fund.  Sometimes  tlie  restrictions 
imposed  apply  only  to  a  particular  class  of  undertakings  —  e.g. 
banks  or  railroads.  The  differences  between  State  and  State 
are  endless  ;  but  everywliere  the  tendency  is  to  make  the  pro- 
tection against  local  indebtedness  and  municipal  extravagance 
more  and  more  strict ;  nor  will  any  one  who  knows  these  local 
authorities,  and  the  temptations,  both  good  and  bad,  to  which 
they  are  exposed,  complain  of  the  strictness.^ 

Cases,  of  course,  occur  in  which  a  restriction  on  the  taxing 
power  or  borrowing  power  of  a  municipality  is  found  incon- 
venient, because  a  costly  public  improvement  is  rendered  more 
costly  if  it  has  to  be  done  piecemeal.  The  corporation  of 
Brooklyn  was  thus  recently  prevented  from  making  all  at 
once  a  great  street  which  would  have  been  a  boon  to  the  city, 
and  will  have  to  spend  more  money  in  buying  up  the  land  for 
it  bit  by  bit.  But  the  evils  which  have  followed  in  America 
from  the  immixture  both  of  States  and  of  cities  in  enterprises 
of  a  public  nature,  and  the  abuses  incident  to  an  unlimited 
power  of  undertaking  improvements,  have  been  so  great  as  to 
make  people  willing  to  bear  wdth  the  occasional  inconven- 
iences which  are  inseparable  from  restriction. 

"A  catalogue  of  these  evils  would  include  the  squandering  of  the 
public  domain  ;  the  enrichment  of  schemers  whose  policy  it  has  been 
first  to  obtain  all  they  can  by  fair  promises,  and  then  avoid,  as  far  and 
as  long  as  possible,  the  fulfilment  of  the  promises ;  the  corruption  of 
legislation  ;  the  loss  of  State  credit ;  great  public  debts  recklessly  con- 
tracted for ;  moneys  often  recklessly  expended  ;  public  discontent,  be- 
cause the  enterprises  fostered  from  the  public  treasury,  and  on  the 
pretence  of  public  benefit,  are  not  believed  to  be  managed  in  the  public 
interest ;  and  finally,  great  financial  panic,  collapse,  and  disaster."  '^ 

The  provisions  above  described  have  had  the  effect  of 
steadily  reducing  the  amount  of  State  debts,  although  the 
wealth  of  the  country  makes  rapid  strides.  This  reduction 
was  between  1870  and  1880,  about  25  per  cent  in  the  case  of 
State  debts,  and  in  that  of  county,  town,  and  school  district 
debts  about  8  per  cent.     In  the  decade  ending  with  1890  the 

1  In  a  Note  to  Chapter  LI.  post,  placed  at  the  end  of  this  volume,  I  have 
given  some  specimens  of  the  constitutional  provisions  which  restrict  the  bor- 
rowing powers  of  local  authorities. 

2  Cooley,  Constit.  Limit,  p.  2G6. 


CHAP.  xLiii  STATE   FINANCE  527 

reduction  in  State  debts  was  $67,218,760  (nearly  half  of  this, 
however,  due  to  scaling  down  of  debts  of  Southern  States)  ; 
but  county  debts  rose  from  $124,105,027  to  $145,048,045,  and 
the  school  district  debts  from  $17,580,682  to  $36,701,948. 
In  cities  there  was,  within  the  decade  1870-80,  not  only  no 
reduction,  but  an  increase  of  over  100  per  cent,  possibly  as 
much  as  130  per  cent.  In  1890  the  total  debt,  less  sinking 
fund,  of  municipalities  exceeding  4000  inhabitants  is  returned 
at  $646,507,644  against  $623,784,262  in  1880,  but  owing  to 
the  growth  of  population  the  amount  per  capita  which  was 
$45.06  in  1880,  had  fallen  in  1890  to  $31.69.^ 

This  striking  difference  between  the  cities  and  the  States 
may  be  explained  in  several  ways.  One  is  that  cities  cannot 
repudiate,  while  sovereign  States  can  and  do.^  Another 
may  be  found  in  the  later  introduction  into  State  Constitu- 
tions of  restrictions  on  the  borrowing  powers  of  municipalities. 
But  the  chief  cause  is  to  be  found  in  the  conditions  of  the 
government  of  great  cities,  where  the  wealth  of  the  commu- 
nity is  largest,  and  is  also  most  at  the  disposal  of  a  multitude 
of  ignorant  voters.  Several  of  the  greatest  cities  lie  in  States 
which  did  not  till  recently,  or  have  not  even  now,  imposed 
adequate  restrictions  on  the  borrowing  power  of  city  councils. 
Now  city  councils,  as  we  shall  see  presently,  are  not  only  in- 
capable administrators,  but  are  prone  to  such  public  improve- 
ments as  present  opportunities  for  speculation,  for  jobbery, 
and  even  for  wholesale  embezzlement. 

1 1  take  these  figures  from  the  Bulletin  No.  17()  of  the  census  of  1890. 

2 In  some  parts  of  New  England  the  city,  tr\vn,  or  other  municipal  debt  is 
also  the  persoual  debt  of  every  inhabitant,  and  is  therefore  an  excellent 
security. 


CHAPTER   XLIV 

THE    WORKING    OF    STATE    GOVERNMENTS 

The  difficulty  I  have  already  remarked  of  explaining  to 
Europeans  the  nature  of  an  American  State,  viz.  that  there  is 
in  Europe  nothing  similar  to  it,  recurs  when  we  come  to  in- 
quire how  the  organs  of  government  which  have  been  described 
play  into  one  another  in  practice.  To  say  that  a  State  is 
something  lower  than  the  nation  but  greater  than  a  municipal- 
ity, is  to  say  what  is  obvious,  but  not  instructive ;  for  the 
peculiarity  of  the  State  is  that  it  combines  some  of  the  feat- 
ures which  are  to  Europeans  characteristic  of  a  nation  and 
a  nation  only,  with  others  that  belong  to  a  municipality. 

The  State  seems  great  or  small  according  to  the  point  of 
view  from  which  one  regards  it.  It  is  vast  if  one  regards  the 
sphere  of  its  action  and  the  completeness  of  its  control  in 
that  sphere,  which  includes  the  maintenance  of  law  and 
order,  nearly  the  whole  field  of  civil  and  criminal  jurispru- 
dence, the  supervision  of  all  local  governments,  an  unlimited 
power  of  taxation.  But  if  we  ask,  Who  are  the  persons 
that  manage  this  great  machine  of  government ;  how  much 
interest  do  the  citizens  take  in  it ;  how  much  reverence  do 
they  feel  for  it  ?  the  ample  proportions  we  had  admired  begin 
to  dwindle,  for  the  persons  turn  out  to  be  insignificant,  and 
the  interest  of  the  people  to  have  steadily  declined.  The 
powers  of  State  authorities  are  powers  like  those  of  a  Euro- 
pean parliament ;  but  they  are  wielded  by  men  most  of  whom 
are  less  distinguished  and  less  respected  by  their  fellows  than 
are  those  who  fill  the  city  councils  of  Manchester  or  Cologne. 
Several  States  exceed  in  area  and  population  some  ancient 
European  monarchies.  But  their  annals  may  not  have  been 
illumined  by  a  single  striking  event  or  brilliant  personality. 

A  further  difficulty  in  describing  how  a  State  government 


CHAP.  xLiv       WORKING   OF   STATE   GOVERNMENTS  529 


works  arises  from  the  endless  differences  of  detail  between  the 
several  States.  The  organic  frame  of  government  is  similar 
in  all ;  but  its  functional  activities  vary  according  to  the 
temper  and  habits,  the  ideas,  education,  and  traditions  of  the 
inhabitants  of  the  State.  A  European  naturally  says,  "  Select 
a  typical  State,  and  describe  that  to  us."  But  there  is  no 
such  thing  as  a  typical  State.  Massachusetts  or  Connecticut 
is  a  fair  sample  of  New  England,  Minnesota  or  Iowa  of  the 
North-West ;  Georgia  or  Alabama  shows  the  evils,  accom- 
panied no  doubt  by  great  recuperative  power,  that  still  vex 
the  South ;  New  York  and  Illinois  the  contrast  between  the 
tendencies  of  an  ignorant  city  mob  and  the  steady-going 
farmers  of  the  rural  counties.  But  to  take  any  one  of  these 
States  as  a  type,  asking  the  reader  to  assume  what  is  said  of 
it  to  apply  equally  to  the  other  forty-three  commonwealths, 
would  land  us  in  inextricable  confusions.  I  must  therefore 
be  content  to  speak  quite  generally,  emj)hasizing  those  points 
in  which  the  colour  and  tendencies  of  State  governments  are 
much  the  same  over  the  whole  Union,  and  begging  the  Euro- 
pean reader  to  remember  that  illustrations  dra^vn,  as  they 
must  be  drawn,  from  some  particular  State,  will  not  neces- 
sarily be  true  of  every  other  State  government,  because  its 
life  may  go  on  under  different  conditions. 

The  State  governments,  as  has  been  observed  already,  bear 
a  family  likeness  to  the  National  or  Federal  government,  a 
likeness  due  not  only  to  the  fact  that  the  latter  was  largely 
modelled  after  the  systems  of  the  old  thirteen  States,  but 
also  to  the  influence  which  the  Federal  Constitution  has  ex- 
erted ever  since  1789  on  those  who  have  been  drafting  or 
amending  State  Constitutions.  Thus  the  Federal  Constitution 
has  been  both  child  and  parent.  Where  the  State  Constitu- 
tions differ  from  the  Federal,  they  invariably  differ  in  being 
more  democratic.  It  still  expresses  the  doctrines  of  1787. 
They  express  the  views  of  later  days,  when  democratic  ideas 
have  been  more  rampant,  and  men  less  cautious  than  the 
sages  of  the  Philadelphia  Convention  have  given  legal  form 
to  popular  beliefs.  This  difference,  which  appears  not  only 
in  the  mode  of  appointing  judges,  but  in  the  shorter  terms 
which  the  States  allow  to  their  officials  and  senators,  comes 
out   most   clearly  in   the   relations    established   between   the 

VOL.  I  2  M 


530  THE   STATE   GOVERNMENTS  part  n 

legislative  and  the  executive  powers.  The  National  executive, 
though  disjoined  from  the  legislature  in  a  way  strange  to 
Europeans,  is  nevertheless  all  of  a  piece.  The  President  is 
supreme  ;  his  ministers  are  his  subordinates,  chosen  by  him 
from  among  his  political  associates.  They  act  under  his 
orders;  he  is  responsible  for  their  conduct.  But  in  the 
States  there  is  nothing  even  distantly  resembling  a  cabinet. 
The  chief  executive  officials  are  directly  elected  by  the  people. 
They  hold  by  a  title  independent  of  the  State  governor.  They 
are  not,  except  so  far  as  some  special  statute  may  provide, 
subject  to  his  directions,  and  he  is  not  responsible  for  their 
conduct,  since  he  cannot  control  it.  As  the  governor  need 
not  belong  to  the  party  for  the  time  being  dominant  in  the 
legislature,  so  the  other  State  officials  need  not  be  of  the  same 
party  as  the  governor.^  They  may  even  have  been  elected  at 
a  different  time,  or  for  a  longer  period. 

A  European,  who  studies  the  mechanism  of  State  govern- 
ment —  very  few  Europeans  so  far  having  studied  it  —  is  at 
first  puzzled  by  a  system  which  contradicts  his  preconceived 
notions.  "  How,"  he  asks,  "  can  such  machinery  work  ?  One 
can  understand  the  scheme  under  which  a  legislature  rules 
through  officers  whom  it  has,  whether  legally  or  practically, 
chosen  and  keeps  in  power.  One  can  even  understand  a 
scheme  in  which  the  executive,  while  independent  of  the  leg- 
islature, consists  of  persons  acting  in  unison,  under  a  head 
directly  responsible  to  the  people.  But  will  not  a  scheme,  in 
which  the  executive  officers  are  all  independent  of  one  another, 
yet  not  subject  to  the  legislature,  want  every  condition  needed 
for  harmonious  and  efficient  action  ?  They  obey  nobody. 
They  are  responsible  to  nobody,  except  a  people  which  only 
exists  in  concrete  activity  for  one  election  day  every  two 
years,  when  it  is  dropping  papers  into  the  ballot-box.  Such 
a  system  seems  the  negation  of  a  system,  and  more  akin  to 
chaos." 

In  his  attempts  to  penetrate  this  mystery,  our  European 
receives  little  help  from  his  usually  helpful  American  friends, 
simply  because  they  do  not  understand  his  difficulty.  Light 
dawns  on  him  when  he  perceives  that  the  executive  business 

1  Thus  Massachusetts  elected  in  1891  (and  again  in  1892)  a  Democratic  gov- 
ernor, but  her  other  State  officials  from  the  Republican  party. 


CHAP.  XLiv       WORKING   OF   STATE   GOVERNMENTS  531 

of  a  State  is  such  as  not  to  need  any  policy,  in  the  European 
sense,  and  therefore  no  harmony  of  view  or  purpose  among 
those  who  manage  it.  Everything  in  the  nature  of  State 
policy  belongs  to  the  legislature,  and  to  the  legislature  alone. 

Compare  the  Federal  President  with  the  State  Governor. 
The  former  has  foreign  policy  to  deal  with,  the  latter  has  none. 
The  former  has  a  vast  patronage,  the  latter  has  scarcely 
any.  The  former  has  the  command  of  the  army  and  navy,  the 
latter  has  only  the  militia,  insignificant  in  ordinary  times. 
The  former  has  a  post-office,  but  there  is  no  State  postal-ser- 
vice. Little  remains  to  the  Governor  except  his  veto,  which 
is  not  so  much  an  executive  as  a  legislative  function ;  the  duty 
of  maintaining  order,  which  becomes  important  only  when 
insurrection  or  riot  breaks  out ;  and  the  almost  mechanical 
fmiction  of  representing  the  State  for  various  matters  of  rou- 
tine, such  as  demanding  from  other  States  the  extradition  of 
offenders,  issuing  writs  for  the  election  of  congressmen  or  of 
the  State  legislature,  receiving  the  reports  of  the  various  State 
officials.  These  officials,  even  the  highest  of  them  who  corre- 
spond to  the  cabinet  ministers  in  the  National  government,  are 
either  mere  clerks,  performing  work,  such  as  that  of  receiving 
and  paying  out  State  moneys,  strictly  defined  by  statute,  and 
usually  checked  by  other  officials,  or  else  are  in  the  nature  of 
commissioners  of  inquiry,  who  may  inspect  and  report,  but  can 
take  no  independent  action  of  importance.  Policy  does  not  lie 
within  their  province ;  even  in  executive  details  their  discre- 
tion is  confined  within  narrow  limits.  They  have,  no  doubt, 
from  the  governor  downwards,  opportunities  for  jobbing  and 
malversation ;  but  even  the  less  scrupulous  are  restrained  from 
using  these  opportunities  by  the  fear  of  some  investigating 
committee  of  the  legislature,  with  possible  impeachment  or 
criminal  prosecution  as  a  consequence  of  its  report.  Holding 
for  terms  which  seldom  exceed  two  or  three  years,  they  feel 
the  insecurity  of  their  position ;  but  the  desire  to  earn  re- 
election by  the  able  and  conscientious  discharge  of  their  func- 
tions, is  a  less  effective  motive  than  it  would  be  if  the  practice 
of  re-electing  competent  men  were  more  frequent.  Unfortu- 
nately here,  as  in  Congress,  the  tradition  of  many  States  is,  that 
when  a  man  has  enjoyed  an  office,  however  well  he  may  have 
served  the  public,  some  one  else  ought  to  have  the  next  turn. 


532  THE   STATE   GOVERNMENTS 


The  reason,  therefore,  why  the  system  I  have  sketched  rubs 
along  in  the  several  States  is,  that  the  executive  has  little  to 
do,  and  comparatively  small  sums  to  handle.  The  further 
reason  why  it  has  so  little  to  do  is  two-fold.  Local  govern- 
ment is  so  fully  developed  that  many  functions,  which  in 
Europe  would  devolve  on  a  central  authority,  are  in  all  Amer- 
ican States  left  to  the  county,  or  the  city,  or  the  township,  or 
the  school  district.  These  minor  divisions  narrow  the  province 
of  the  State,  just  as  the  State  narrows  the  province  of  the  cen- 
tral government.  And  the  other  reason  is,  that  legislation  has 
in  the  several  States  pushed  itself  to  the  farthest  limits,  and 
so  encroached  on  subjects  which  European  legislatures  would 
leave  to  the  executive,  that  executive  discretion  is  extinct,  and 
the  officers  are  the  mere  hands  of  the  legislative  brain,  which 
directs  them  by  statutes  drawn  with  extreme  minuteness,  care- 
fully specifies  the  purposes  to  which  each  money  grant  is  to 
be  applied,  and  supervises  them  by  inquisitorial  committees. 

It  is  a  natural  consequence  of  these  arrangements  that  State 
office  carries  little  either  of  dignity  or  of  power.  A  place  is 
valued  chiefly  for  its  salary,  or  for  such  opportunities  of  oblig- 
ing friends  or  securing  commissions  on  contracts  as  it  may  pre- 
sent though  in  the  greatest  States  the  post  of  attorney-general 
or  comptroller  is  often  sought  by  able  men.  A  State  Governor, 
however,  is  not  yet  a  nonentity.  In  more  than  one  State  a 
sort  of  perfume  from  the  old  days  lingers  round  the  office,  as 
in  Massachusetts,  where  the  traditions  of  last  century  were 
renewed  by  the  eminent  man  who  occupied  the  chair  of  the 
commonwealth  during  the  War  of  Secession  and  did  much  to 
stimulate  and  direct  the  patriotism  of  its  citizens.  Though  no 
one  would  nowadays,  like  Mr.  Jay  in  1795,  exchange  the  chief 
justiceship  of  the  United  States  for  the  governorship  of  his 
State,  a  Cabinet  minister  will  sometimes,  as  Mr.  Folger  did  a 
few  years  ago,  seek  to  quit  his  post  in  order  to  obtain  the  gov- 
ernorship of  a  great  State  like  New  York.  In  all  States,  the 
Governor,  as  the  highest  official  and  the  depositary  of  State 
authority,  may  at  any  moment  become  the  pivot  on  whose 
action  public  order  turns.  In  the  Pennsylvania  riots  of  1877 
it  was  the  accidental  absence  of  the  Governor  on  a  tour  in  the 
West  which  enabled  the  forces  of  sedition  to  gather  strength. 
During  the  more  recent  disturbances  which  large  strikes,  espe- 


CHAP.  XLiv      WORKING  OF  STATE   GOVERNMENTS  533 

cially  among  railway  employes,  have  caused  in  the  West,  the 
prompt  action  of  a  Governor  has  preserved  or  restored  tran- 
quillity in  more  than  one  State ;  while  the  indecision  of  the 
Governor  of  an  adjoining  one  has  emboldened  strikers  to  stop 
traffic,  or  to  molest  workmen  who  had  been  hired  to  replace 
them.  So  in  a  commercial  crisis,  like  that  which  swept  over 
the  Union  in  1837,  when  the  citizens  are  panic-stricken  and  the 
legislature  hesitates,  much  may  depend  on  the  initiative  of  the 
Governor,  to  whom  the  eyes  of  the  people  naturally  turn.  His 
right  of  suggesting  legislative  remedies,  usually  neglected,  then 
becomes  significant,  and  may  abridge  or  increase  the  difficulties 
of  the  community. 

It  is  not,  however,  as  an  executive  magistrate  that  a  State 
Governor  usually  makes  or  mars  a  reputation,  but  in  his  quasi- 
legislative  capacity  of  agreeing  to  or  vetoing  bills  passed  by 
the  legislature.  The  merit  of  a  Governor  is  usually  tested  by 
the  number  and  the  boldness  of  his  vetoes ;  and  a  European 
enjoys,  as  I  did  in  the  State  of  Xew  York  in  1870,  the  odd 
spectacle  of  a  Governor  appealing  to  the  people  for  re-election 
on  the  ground  that  he  had  defeated  in  many  and  important 
instances  the  will  of  their  representatives  solemnly  expressed 
in  the  votes  of  both  Houses.  That  such  appeals  should  be 
made,  and  often  made  successfully,  is  due  not  only  to  the  dis- 
trust which  the  people  entertain  of  their  legislatures,  but  also, 
to  their  honour  be  it  said,  to  the  respect  of  the  people  for 
courage.  They  like  above  all  things  a  strong  man ;  just  as 
English  constituencies  prefer  a  candidate  who  refuses  to 
swallow  pledges  or  be  dictated  to  by  cliques. 

This  view  of  the  Governor  as  a  check  on  the  legislature 
explains  why  the  Americans  think  it  rather  a  gain  than  an 
injury  to  the  State  that  he  should  belong  to  the  party  which  is 
for  the  time  being  in  a  minority  in  the  legislature.  How  the 
phenomenon  occurs  may  be  seen  by  noting  the  different 
methods  of  choice  employed.  The  Governor  is  chosen  by  a 
mass  vote  of  all  citizens  over  the  State.  The  representatives 
are  chosen  by  the  same  voters,  but  in  districts.  Thus  one 
party  may  have  a  majority  on  a  gross  poll  of  the  whole  State, 
but  may  find  itself  in  a  minority  in  the  larger  number  of  elec- 
toral districts.  This  happens  in  New  York  State,  on  an  average, 
in  two  years  out  of  every  three.     The  mass  vote  shows  a  dem- 


534  THE    STATE    GOVERNMENTS  part  ii 

ocratic  majority,  because  the  Democrats  are  overwhelmingly 
strong  in  New  York  City,  and  some  other  great  centres  of 
population.  But  in  the  rural  districts  and  most  of  the  smaller 
towns  the  Republican  party  commands  a  majority  sufficient  to 
enable  them  to  carry  most  districts.  Hence,  while  the  Gov- 
ernor is  usually  a  Democrat,  the  legislature  is  often  Reimb- 
lican.  Little  trouble  need  be  feared  from  the  opposition  of 
the  two  powers,  because  such  issues  as  divide  the  national 
parties  have  scarce  any  bearing  on  State  affairs.  Some  good 
may  be  hoped,  because  a  Governor  of  the  other  party  is  more 
likely  to  check  or  show  up  the  misdeeds  of  a  hostile  Senate  or 
Assembly  than  one  who,  belonging  to  the  group  of  men  which 
guides  the  legislature,  has  a  motive  for  working  with  them, 
and  may  expect  to  share  any  gains  they  can  amass. ^ 

Thus  we  are  led  back  to  the  legislature,  which  is  so  much 
the  strongest  force  in  the  several  States  that  we  may  almost 
call  it  the  Government  and  ignore  all  other  authorities.  Let 
us  see  how  it  gets  on  without  that  guidance  which  an  executive 
ministry  supplies  to  the  Chambers  of  every  free  European 
country. 

As  the  frame  of  a  State  government  generally  resembles  the 
National  government,  so  a  State  legislature  resembles  Congress. 
In  most  States,  it  exaggerates  the  characteristic  defects  of 
Congress.  It  has  fewer  able  and  high-minded  men  among  its 
members.  It  has  less  of  recognized  leadership.  It  is  sur- 
rounded by  temptations  relatively  greater.  It  is  guarded  by 
a  less  watchful  and  less  interested  public  opinion.  But  before 
we  inquire  what  sort  of  men  fill  the  legislative  halls,  let  us  ask 
what  kinds  of  business  draw  them  there. 

The  matter  of  State  legislation  may  be  classified  under  three 
heads : 

I.  Ordinary  private  law,  i.e.  contracts,  torts,  inheritance, 
family  relations,  offences,  civil  and  criminal  procedure. 

1  Sometimes,  however,  inconvenience  arises  from  the  hostility  of  the  State 
Senate  and  the  Governor.  Quite  recently  the  Senate  of  New  York  persistently 
refused  to  confirm  the  nominations  made  to  certain  offices  by  the  Governor, 
with  the  effect  of  securing  the  retention  in  office  long  beyond  their  legal  term 
of  several  officials,  these  old  officials  holding  on  and  drawing  their  salaries 
because  no  new  men  had  been  duly  appointed  to  fill  their  places.  The  Senate 
was  thought  to  have  behaved  ill ;  but  the  Governor  was  not  trusted  and  neither 
exerted  nor  deserved  to  exert  any  moral  authority. 


CHAP.  XLiv      WORKING  OF   STATE   GOVERNMENTS  535 


II.  Administrative  law,  including  the  regulation  of  munici- 
pal and  rural  local  government,  public  works,  education,  the 
liquor  traffic,  vaccination,  adultei-ation,  charitable  and  penal 
establishments,  the  inspection  of  mines  or  manufactories,  to- 
gether with  the  general  law  of  corporations,  of  railroads,  and 
of  labour,  together  also  with  taxation,  both  State  and  local, 
and  the  management  of  the  public  debt. 

III.  Measures  of  a  local  and  special  nature,  such  as  are 
called  in  England  "  private  bills,"  i.e.  bills  for  chartering  and 
incorporating  gas,  water,  canal,  tramway,  or  railway  companies, 
or  for  conferring  franchises  in  the  nature  of  monopolies  or 
privileges  upon  such  bodies,  or  for  altering  their  constitutions, 
for  incorporating  cities  and  minor  communities  and  regulating 
their  affairs. 

Comparing  these  three  classes  of  business,  between  the  first 
and  second  of  which  it  is  no  doubt  hard  to  draw  a  sharp  line, 
we  shall  find  that  bills  of  the  second  class  are  more  numerous 
than  those  of  the  first,  bills  of  the  third  more  numerous  than 
those  of  the  other  two  put  together.  Ordinary  private  law, 
the  law  which  guides  or  secures  us  in  the  every  day  relations 
of  life,  and  upon  which  nine-tenths  of  the  suits  between  man 
and  man  are  founded,  is  not  greatly  changed  from  year  to  year 
in  the  American  States.  Many  Western,  and  a  few  Eastern 
States  have  made  bold  experiments  in  the  field  of  divorce,  others 
have  added  new  crimes  to  the  statute-book  and  amended  their 
legal  procedure.  But  commercial  law,  as  well  as  the  law  of 
property  and  civil  riglits  in  general,  remains  tolerably  stable. 
People  are  satisfied  with  things  as  they  are,  and  the  influence 
of  the  legal  profession  is  exerted  against  tinkering.  In  matters 
of  the  second  class,  which  I  have  called  administrative,  because 
they  generally  involve  the  action  of  the  State  or  of  some  of 
the  communities  which  exist  within  it,  there  is  more  legislative 
activity.  Every  session  sees  experiments  tried  in  this  field, 
generally  with  the  result  of  enlarging  the  province  of  govern- 
ment, both  by  interfering  with  the  individual  citizen  and  by 
attempting  to  do  things  for  him  which  apparently  he  either 
does  not  do  or  does  not  do  well  for  himself.^    But  the  general 

1  See  the  chapter  on  "  Laissez  Faire,"  in  Vol.  II. 

Many  of  these  measures  have  been  prepared  by  associations  outside  the 
legislature,  who  embody  their  wishes  in  a  bill,  give  it  to  a  member  or  members, 


536  THE   STATE   GOVERNMENTS  part  ii 

or  "  public  "  legislation,  is  dwarfed  by  the  "  private  bill  "  legis- 
lation which  forms  the  third  of  our  classes.  The  bills  that  are 
merely  local  or  special  outnumber  general  bills  everywhere, 
and  outnumber  them  enormously  in  those  States  which,  like 
Virginia,  or  Mississippi  (down  till  1890),  do  not  require  cor- 
porations to  be  formed  under  general  laws.^  Such  special  bills 
are  condemned  by  thoughtful  Americans,  not  only  as  confus- 
ing the  general  law,  but  because  they  furnish,  unless  closely 
watched,  opportunities  for  perpetrating  jobs,  and  for  inflicting 
injustice  on  individvials  or  localities  in  the  interest  of  some 
knot  of  speculators.  They  are  one  of  the  scandals  of  the 
cou.ntry.  But  there  is  a  further  objection  to  their  abundance 
in  the  State  legislatures.  They  are  a  perennial  fountain  of 
corruption.  Promoted  for  pecuniary  ends  by  some  incorpo- 
rated company  or  group  of  men  proposing  to  form  a  company, 
their  passage  is  secured  by  intrigue,  and  by  the  free  expendi- 
ture of  money  which  finds  its  way  in  large  sums  to  the  few 
influential  men  who  control  a  State  Senate  or  Assembly,  and 
in  smaller  sums  to  those  among  the  rank  and  file  of  members 
Avho  are  accessible  to  these  solid  arguments,  and  careless  of 
any  others.  It  is  the  possibility  of  making  profit  in  this  way 
out  of  a  seat  in  the  legislature  which  draws  to  it  not  a  few  men 
in  those  States  which,  like  New  York,  Pennsylvania,  or  Illinois, 
offer  a  promising  field  for  large  pecuniary  enterprises.  Where 
the  carcase  is  there  will  the  vultures  be  gathered  together. 
The  money  power,  which  is  most  formidable  in  the  shape  of 
large  corporations,  chiefly  attacks  the  legislatures  of  these 
great  States.  It  is,  however,  felt  in  nearly  all  States.  And 
even  where,  as  is  the  case  in  most  States,  only  a  small  minor- 
ity of  members  are  open  to  bribes,  the  opportunity  which 
these  numerous  local  and  special  bills  offer  to  a  man  of  making 
himself  important,  of  obliging  his  friends,  of  securing  some- 
thing for  his  locality  and  thereby  confirming  his  local  influence, 
is  suflicient  to  make  a  seat  in  the  legislature  desired  chiefly  in 
respect  of   such  bills,  and  to  obscure,    in   the  eyes   of    most 

and  get  it  passed,  perhaps  with  scarcely  any  debate.  Thus  not  only  the 
Labour  organizations,  such  as  the  Knights  of  Labour,  and  the  Grangers 
(farmers'  clubs),  hut  the  Women's  Christian  Temperance  Union,  the  medical 
profession,  the  dentists,  the  dairymen,  get  their  favourite  schemes  enacted. 

1  In  1890,  the  Kentucky  legislature  passed  176  public  and  1752  local  or 
private  acts. 


CHAP.  XLiv       WOEKING   OF   STATE    GOVERNMENTS  537 

members,  the  higher  functions  of  general  legislation  which 
these  assemblies  possess.  One  may  apply  to  these  common- 
wealths, though  in  a  new  sense,  the  famous  dictum,  corruptis- 
sima  republica  plitrimae  leges. 

One  form  of  this  special  legislation  is  peculiarly  attractive 
and  pernicious.  It  is  the  power  of  dealing  by  statute  with 
the  municipal  constitution  and  actual  management  of  cities. 
Cities  grow  so  fast  that  all  undertakings  connected  with  them 
are  particularly  tempting  to  speculators.  City  revenues  are 
so  large  as  to  offer  rich  plunder  to  those  who  can  seize  the  con- 
trol of  them.  The  vote  which  a  city  casts  is  so  heavy  as  to 
throw  great  power  into  the  hands  of  those  who  control  it,  and 
enable  them  to  drive  a  good  bargain  with  the  wirepullers  of 
a  legislative  chamber.  Hence  the  control  exercised  by  the 
State  legislature  over  city  government  is  a  most  important 
branch  of  legislative  business,  a  means  of  power  to  scheming 
politicians,  of  enrichment  to  greedy  ones,  and  if  not  of  praise 
to  evil-doers,  yet  certainly  of  terror  to  them  that  do  well.^ 

We  are  now  in  a  position,  having  seen  what  the  main  busi- 
ness of  a  State  legislature  is,  to  inquire  what  is  likely  to  be 
the  quality  of  the  persons  who  compose  it.  The  conditions 
that  determine  their  quality  may  be  said  to  be  the  following :  — 

I.  The  system  of  selection  by  party  conventions.  As  this 
will  be  described  in  subsequent  chapters  (Part  III.),  I  will 
here  say  no  more  than  that  it  prevents  the  entrance  of  good 
men  and  favours  that  of  bad  ones. 

II.  The  habit  of  choosing  none  but  a  resident  to  represent 
an  electoral  district,  a  habit  which  narrows  the  field  of  choice, 
and  not  only  excludes  competent  men  from  other  parts  of  the 
State,  but  deters  able  men  generally  from  entering  State  pol- 
itics, since  he  who  loses  his  seat  for  his  own  district  cannot 
iind  his  way  back  to  the  legislature  as  member  for  any  other. 

III.  The  fact  that  the  capital  of  a  State  —  i.e.  the  meeting- 
place  of  the  legislature  and  residence  of  the  chief  officials,  is 

1  Although  this  tinkering  with  city  government  is  most  harmful  where  the 
cities  are  large,  it  is  abundant  even  where  the  cities  are  small.  For  instance, 
in  Wisconsin,  a  Western  State  with  only  one  large  city  (Milwaukee),  there 
were  passed  in  the  session  of  1885  about  500  acts  granting  or  dealing  with  city 
charters,  filling  1342  pages  of  print.  All  the  other  acts  of  the  year  filled  only 
about  600  pages.  —  Address  delivered  by  Dr.  Albert  Shaw  (in  1888)  at  Cornell 
University. 


538  THE   STATE   GOVERNMENTS  part  ii 

usually  a  small  town,  at  a  distance  from  the  most  populous 
city  or  cities  of  the  State,  and  therefore  a  place  neither  attrac- 
tive socially  nor  convenient  for  business  men  or  lawyers,  and 
which,  it  may  be  remarked  in  passing,  is  more  shielded  from 
a  vigilant  public  opinion  than  is  a  great  city,  with  its  keen 
and  curious  press.  Pennsylvanians  who  might  be  willing  to 
serve  in  a  legislature  meeting  at  Philadelphia  are  less  inclined 
to  attend  one  at  Harrisburg.  An  eminent  citizen  of  Connect- 
icut observed  to  me  that,  whereas  everybody  in  that  little 
State  could  reach  Hartford  in  a  few  hours  from  its  farthest 
corner,  a  member  attending  the  legislature  of  Illinois  or  Wis- 
consin might  often  have  to  quit  his  home  and  live  during  the 
session  at  Springfield  or  Madison,  because  these  capitals  are 
remote  from  the  outer  parts  of  those  large  commonwealths. 
He  thought  this  a  factor  in  the  comparative  excellence  of  the 
Connecticut  legislature. 

IV.  The  nature  of  the  business  that  comes  before  a  State 
legislature.  As  already  explained,  by  far  the  largest  part  of 
this  business  excites  little  popular  interest  and  involves  no 
large  political  issues.  Unimportant  it  is  not.  Nothing  could 
well  be  more  important  than  to  repress  special  legislation,  and 
deliver  cities  from  the  fangs  of  the  spoiler.  But  its  impor- 
tance is  not  readily  apprehended  by  ordinary  people,  the 
mischiefs  that  have  to  be  checked  being  spread  out  over  a 
multitude  of  bills,  most  of  them  individually  insignificant, 
however  ruinous  in  their  cumulated  potency.  Hence  a  leading 
politician  seldom  troubles  himself  to  enter  a  State  legislature, 
while  the  men  who  combine  high  character  with  talent  and 
energy  are  too  much  occupied  in  practising  their  profession  or 
pushing  their  business  to  undertake  the  dreary  task  of  wran- 
gling over  gas  and  railroad  bills  in  committees,  or  exerting 
themselves  to  win  some  advantage  for  the  locality  that  returns 
them. 

I  have  not  mentioned  among  these  depressing  conditions  the 
payment  of  salaries  to  members,  because  it  makes  little  differ- 
ence. It  is  no  doubt  an  attraction  to  some  of  the  poorer  men, 
to  penurious  farmers,  or  half-starved  lawyers.  But  in  attract- 
ing them  it  does  not  serve  to  keep  out  any  better  men.  Prob- 
ably the  sense  of  public  duty  would  be  keener  if  legislative 
work  was  not  paid  at  all.     But,  looking  at  the  question  practi- 


CUAP.  XLiv        WORKING   OF   STATE   GOVERNMENTS  539 

cally,  I  doubt  whether  the  discontinuance  of  salaries  would 
improve  the  quality  of  American  legislators.  The  drawbacks 
to  the  position  which  repel  the  best  men,  the  advantages  which 
attract  inferior  men,  would  remain  the  same  as  now ;  and  there  is 
nothing  absurd  in  the  view  that  the  places  of  those  who  might 
cease  to  come  if  they  did  not  get  their  five  dollars  a  day  would 
be  taken  by  men  who  would  manage  to  make  as  large  an  in- 
come in  a  less  respectable  way. 

After  this,  it  need  scarcely  be  said  that  the  State  legislatures 
are  not  high-toned  bodies.  The  best  seem  to  be  those  of  some 
of  the  New  England  States,  particularly  Massachusetts,  where 
the  venerable  traditions  surrounding  an  ancient  commonwealth 
do  something,  though  not  enough,  to  sustain  the  dignity  of  the 
body  and  induce  good  men  to  enter  it.  This  legislature,  called 
the  General  Court,  is,  according  to  the  best  avithorities,  substan- 
tially pure,  and  does  its  work  passably  well.  Its  composition  is, 
however,  inferior  to  that  of  the  General  Courts  of  sixty  years 
ago,  and  has  not -improved  of  late.  Connecticut  has  a  fair 
Senate,  and  a  tolerable  House  of  Kepresentatives.  It  is  also 
reported  to  be  reasonably  honest,  though  not  free  from  dema- 
gogism.  Vermont  is  pure ;  New  Hampshire,  a  State  where 
constituencies  are  reproached  with  bribery,  less  respectable. 
Next  come  some  of  the  North-Western  States,  where  the  popu- 
lation, consisting  almost  entirely  of  farmers,  who  own  as  well  as 
work  their  land,  sends  up  members  who  fairly  represent  its 
average  intelligence,  and.are  little  below  the  level  of  its  average 
virtue.  There  are  no  traditions  in  such  States,  and  there  are 
already  corporations  rich  enough  to  corrupt  members  and  be 
themselves  black-mailed.  Hence  one  is  prepared  to  find  among 
the  legislators  professional  politicians  of  the  worst  class.  But 
the  percentage  of  such  men  is  small  in  States  like  Michigan, 
Iowa,  Minnesota,  Oregon,  probably  not  more  than  from  five  to 
ten  per  cent,  the  other  members  being  often  ignorant  and 
narrow,  but  honest  and  well-intentioned.  In  Oliio  and  Indiana 
the  proportion  of  black  sheep  may  be  somewhat  higher. 

It  is  hard  to  present  a  general  view  of  the  Southern  States, 
both  because  there  are  great  differences  among  them,  and  be- 
cause they  are  still  in  a  state  of  transition,  generally,  it  would 
seem,  transition  towards  a  better  state  of  things.  Roughly 
speaking,  their  legislatures  stand  below  those  of  the  North- 


540  THE   STATE   GOVERNMENTS  part  ii 

West,  though  in  most  a  few  men  of  exceptional  ability  and 
standing  may  be  found.  Kentucky  and  Georgia  are  among 
the  better  States,  Mississippi  and  Arkansas  are  reported  as 
among  the  less  pure.  Louisiana,  infected  by  ^ew  Orleans,  is 
admittedly  the  worst. 

The  lowest  place  belongs  to  the  States  which,  possessing  the 
largest  cities,  have  received  the  largest  influx  of  European 
immigrants,  and  have  fallen  most  completely  under  the  control 
of  unscrupulous  party  managers.  New  York,  Philadelphia, 
Baltimore,  Chicago,  Cincinnati,  San  Francisco  have  done  their 
best  to  poison  the  legislatures  of  the  States  in  which  they  re- 
spectively lie  by  filling  these  bodies  with  members  of  a  low 
type,  as  well  as  by  being  themselves  the  centres  of  enormous 
accunuilations  of  capital.  They  have  brought  the  strongest 
corrupting  force  into  contact  with  the  weakest  and  most  cor- 
ruptible material ;  and  there  has  followed  in  Pennsylvania  and 
New  York  such  a  "Witches'  Sabbath  of  jobbing,  bribing,  thiev- 
ing, and  prostitution  of  legislative  power  to  private  interest  as 
the  world  has  seldom  seen.  Of  course  even  in  these  States 
the  majority  of  the  members  are  not  bad  men,  for  the  majority 
come  from  the  rural  districts  or  smaller  towns,  where  honesty 
and  order  reign  as  they  do  generally  in  Xorthern  and  "Western 
America  outside  a  few  large  cities.  ]\rany  of  them  are  farmers 
or  small  lawj-ers,  who  go  up  meaning  to  do  right,  but  fall  into 
the  hands  of  schemers  who  abuse  their  inexperience  and  prac- 
tise on  their  ignorance.  One  of  the  ablest  and  most  vivacious 
of  the  younger  generation  of  American  politicians^  says: 

"  "Where  a  number  of  men,  many  of  them  poor,  some  of  them  imscni- 
pulous,  and  others  elected  bj'  constituents  too  ignorant  to  hold  them  to  a 
proper  accountability  for  their  actions,  are  put  into  a  position  of  great 
temporary  power,  where  they  are  called  to  take  action  upon  cjuestions 
affecting  the  welfare  of  large  corporations  and  wealthy  private  individuals, 
the  chances  for  corruption  are  always  great ;  and  that  there  is  much 
viciousness  and  political  dishonesty,  much  moral  cowardice,  and  a  good 
deal  of  actual  bribe-taking  at  Albany,  no  one  who  has  had  practical  expe- 
rience of  legislation  can  doubt.  At  the  same  time,  I  think  the  good 
members  outnumber  the  bad.  .  .  .  The  representatives  from  the  country 
districts  are  usually  good  men,  well-to-do  farmers,  small  lawj^ers,  or  pros- 
perous storekeepers,  and  are  shrewd,  quiet,  and  honest.     They  are  often 

1  Mr.  Theodore  Roosevelt  of  New  York,  in  the  Century  Magazine  for 
April  1885. 


CHAP.  xLiv       WOEKING   OF   STATE    GOVERNMENTS  541 


narrow-minded,  and  slow  to  receive  an  idea  ;  but  they  cling  to  it  with  the 
utmost  tenacity.  For  the  most  part  they  are  native  Americans,  and  those 
who  are  not  are  men  who  have  become  completely  Americanized  in  their 
ways  and  habits  of  thought.  .  .  .  The  worst  legislators  come  from  the 
great  cities.  They  are  usually  foreigners  of  little  or  no  education,  with 
exceedingly  misty  ideas  as  to  morality,  and  possessed  of  an  ignorance  so 
profound  that  it  could  only  be  called  comic  were  it  not  for  the  fact  that  it 
has  at  times  such  serious  effects  on  our  laws.  It  is  their  ignorance  quite 
as  much  as  actual  viciousness  which  makes  it  so  difficult  to  procure  the 
passage  of  good  laws,  or  to  prevent  the  passage  of  bad  ones  ;  and  it  is 
the  most  irritating  of  the  many  elements  with  which  we  have  to  contend 
in  the  fight  for  good  government."  ^ 

The  same  writer  goes  on  to  say  that  after  sitting  in  three 
New  York  legislatures  he  came  to  think  that  about  one-third 
of  the  members  were  open  to  corrupt  influences,  but  that 
although  the  characters  of  those  men  were  known  to  their 
colleagues  and  to  the  "  lobby,"  it  was  rarely  possible  to  con- 
vict them.  Many  of  this  worst  third  had  not  gone  into  the 
legislature  meaning  to  make  gain  out  of  the  position,  but  had 
been  corrupted  by  it.  They  found  that  no  distinction  was  to 
be  won  there  by  legitimate  methods,  and  when  temptation 
came  in  their  way  they  fell,  having  feeble  consciences  and  no 
statesmanlike  knowledge.  Or  they  were  anxious  above  all 
things  to  pass  some  local  measure  on  which  their  constituents 
were  set,  and  they  found  they  could  not  win  the  support  of 
other  members  except  by  becoming  accomplices  in  the  jobs  or 
"steals"  which  these  members  were  "putting  through."  Or 
they  gained  their  seat  by  the  help  of  some  influential  man 
or  powerful  company,  and  found  themselves  obliged  to  vote 
according  to  the  commands  of  their  "  owner."  ^ 

1  Any  one  with  experience  of  legislative  bodies  will  agree  with  the  view  that 
ignorance  and  stupidity  cause  more  trouble  than  bad  intentions,  seeing  that 
they  are  more  common,  and  are  the  materials  on  which  men  of  bad  intentions 
play. 

2  "  There  came  before  a  committee  (of  the  New  York  House)  of  which  I  hap- 
pened to  be  a  member,  a  perfectly  proper  bill  in  the  interest  of  a  certain  cor- 
poration; the  majority  of  the  committee,  six  in  nmnber,  were  thoroughly  bad 
men,  who  opposed  with  the  hope  of  being  paid  to  cease  their  opposition.  When 
I  consented  to  take  charge  of  the  bill,  I  stipulated  that  not  a  penny  should  be 
paid  to  ensure  its  passage.  It  therefore  became  necessary  to  see  what  pressure 
could  be  brought  to  bear  on  the  recalcitrant  members  ;  and  accordingly  we  had 
to  find  out  wlio  were  the  authors  and  sponsors  of  their  political  being.  Three 
proved  to  be  under  the  control  of  local  statesmen  of  the  same  party  as  them- 
selves, and  of  equally  bad  moral  character ;  one  was  ruled  by  a  politician  of 


542  THE   STATE   GOVERNMENTS  part  ii 

The  corrupt  member  has  several  methods  of  making  gains. 
One,  the  most  obvious,  is  to  exact  money  or  money's  worth  for 
liis  vote.  A  second  is  to  secure  by  it  the  support  of  a  group 
of  his  colleagues  in  some  other  measure  in  which  he  is  person- 
ally interested,  as  for  instance  a  measure  which  will  add  to 
the  value  of  land  near  a  particular  city.  This  is  ''  log-rolling," 
and  is  the  most  difficult  method  to  deal  with,  because  its 
milder  forms  are  scarcely  distinguishable  from  that  legitimate 
give  and  take  which  must  go  on  in  all  legislative  bodies.  It 
is,  however,  deemed  so  mischievous,  that  four  new  Constitu- 
tions have  expressly  enacted  that  it  shall  be  held  to  constitute 
the  offence  of  solicitation  or  bribery,  and  be  punishable  accord- 
ingly.^ A  third  is  black-mailing.  A  member  brings  in  a  bill 
either  specially  directed  against  some  particular  great  corpora- 
tion, probably  a  railway,  or  proposing  so  to  alter  the  general 
law  as  in  fact  to  injure  such  a  corporation,  or  a  group  of  corpo- 
rations. He  intimates  privately  that  he  is  willing  to  "  see  "  the 
directors  or  the  law-agents  of  the  corporation,  and  is  in  many 
cases  bought  off  by  them,  keeping  his  bill  on  the  paper  till  the 
last  moment  so  as  to  prevent  some  other  member  from  repeat- 
ing the  trick.  Even  in  the  North- Western  States  there  is 
usually  a  group  of  such  "  scallawag "  members,  who,  finding 
the  $300  they  receive  insufficient,  increase  their  legislative 
income  by  levying  this  form  of  taxation  upon  the  companies 
of  the  State.  Nor  is  the  device  (technically  called  a  "strike") 
quite  unknown  in  New  England,  where  a  ten  hours'  labour  bill, 
for  instance,  has  frequently  been  brought  in  to  frighten  the 
large  corporations  and  other  capitalists  into  inducing  its  author 
to  drop  it,  the  inducements  being  such  as  capitalists  can  best 
apply.  Every  considerable  railway  keeps  an  agent  or  agents 
continually  on  the  spot  while  a  State  legislature  is  in  session, 
watching  the  bills  brought  in  and  the  committees  that  deal 
with  them.  Such  an  agent  sometimes  relies  on  the  friends  of 
the  railway  to  defeat  these  bills,  and  uses  the  usual  expedients 
for  creating  friends.     But  it  is  often  cheaper  and  easier  to 

unsavoury  reputation  from  a  different  city;  the  fifth,  a  Democrat,  was  owned 
by  a  Republican  (!)  Federal  official,  and  the  sixth  by  the  president  of  a  horse- 
car  [street  tramway]  company.  A  couple  of  letters  from  these  two  magnates 
forced  the  last-mentioned  members  to  change  front  on  the  bill  with  surprising 
alacrity."  —  Mr.  Theodore  Roosevelt,  ut  supra. 
1  North  Dakota,  Montana,  Idaho,  and  Wyoming. 


CHAP.  XLiv       WORKING   OF   STATE    GOVERNMENTS  543 

square  the  assailant.^  Of  course  the  committees  are  the  focus 
of  intrigue,  and  the  chairmanship  of  a  committee  the  position 
which  affords  the  greatest  facilities  for  an  unscrupulous  man. 
Round  the  committees  there  buzzes  that  swarm  of  professional 
agents  which  Americans  call  "the  lobby,"  soliciting  the  mem- 
bers, threatening  them  with  trouble  in  their  constituencies, 
plying  them  with  all  sorts  of  inducements,  treating  them  to 
dinners,  drinks,  and  cigars.^ 

In  these  demoralized  States  the  State  Senate  is  apt  to  be  a 
worse  body  than  the  House,  whereas  in  the  better  States  the 
Senate  is  usually  the  superior  body.^  The  reason  is  two-fold. 
As  the  Senate  is  smaller  —  in  New  York  it  consists  of  32 
members  against  128  in  the  Assembly — the  vote  of  each 
member  is  of  more  consequence,  and  fetches,  when  venal,  a 
higher  price.  Other  things  being  equal,  a  stronger  temptation 
is  more  likely  to  overcome  virtue,  and  other  things  practically 
are  equal,  because  it  is  just  as  hard  to  fix  responsibility  on  a 
senator  as  on  an  Assembly  man,  and  the  post  is  no  more 
dignified.  And  the  second  reason  is  that  the  most  adroit  and 
practised  intriguers  work  their  way  up  into  the  Senate,  where 
their  power  (which  includes  the  confirmation  of  appointments) 
is  greater  and  their  vote  more  valuable.  There  is  a  survival  of 
the  fittest,  but  as  fitness  includes  the  absence  of  scruples,  this 
comes  in  practice  to  mean  the  natural  selection  of  the  worst. 

1  The  president  of  a  Western  railroad,  an  upright  as  well  as  able  man,  told 
me  that  he  was  obliged  to  keep  constant  guard  at  the  capital  of  the  State  in 
which  the  line  lay,  while  the  legislature  was  sitting,  and  to  use  every  means 
to  defeat  bills  aimed  at  the  railway,  because  otherwise  the  shareholders  would 
have  been  ruined.  He  deplored  the  necessity.  It  was  a  State  of  comparatively 
good  tone,  but  there  was  such  a  prejudice  against  railroads  among  tlie  farming 
population,  that  mischievous  bills  had  a  chance  of  success,  and  therefore  des- 
perate remedies  were  needed. 

2  "  One  senator,  who  was  generally  known  as  '  the  wicked  Gibbs,'  spent  two 
years  at  Albany,  in  which  he  pursued  his  '  business  '  so  shamelessly  that  his 
constituents  refused  to  send  him  there  again ;  but  he  coolly  came  out  a  year 
later  and  begged  for  a  return  to  the  Assembly  on  the  ground  that  he  was 
financially  emijarrassed,  and  wished  to  go  to  the  Assembly  in  order  to  retrieve 
his  fortunes  on  the  salary  of  an  Assembly-man,  which  is  §1500  (£300) !  "  —  Mr. 
J.  B.  Bishop  of  New  York,  in  a  paper  entitled  Money  in  City  Elections,  p.  6. 

3  Some  of  my  informants  would  not  admit  this ;  and  some  fixed  the  percent- 
age of  corrupt  men,  even  at  Albany,  lower  than  Mr.  Roosevelt  does.  Writers 
of  the  pessimistic  school  make  it  even  higher.  I  give  here  and  elsewhere  what 
seem  to  be  on  the  whole  the  best  supported  views,  though,  as  Herodotus  says 
about  the  legend  of  Cyrus,  "  knowing  three  other  paths  of  story  also." 


544  THE    STATE   GOVERNMENTS  part  ii 

I  escape  from  this  Stygian  pool  to  make  some  observations 
which  seem  applicable  to  State  legislatures  generally,  and  not 
merely^  to  the  most  degraded. 

The  spirit  of  localism,  surprisingly  strong  everywhere  in 
America,  completely  rules  them.  A  member  is  not  a  member 
for  his  State,  chosen  by  a  district  but  bound  to  think  first  of  the 
general  welfare  of  the  commonwealth.  He  is  a  member  for 
Brownsville,  or  Pompey,  or  the  Seventh  district,  and  so  forth, 
as  the  case  may  be.  His  first  and  main  duty  is  to  get  the  most 
he  can  for  his  constituency  out  of  the  State  treasury,  or  by 
means  of  State  legislation.  No  appeal  to  the  general  interest 
would  have  weight  with  him  against  the  interests  of  that  spot. 
What  is  more,  he  is  deemed  by  his  colleagues  of  the  same 
party  to  be  the  sole  exponent  of  the  wishes  of  the  spot,  and 
solely  entitled  to  handle  its  affairs.  If  he  approves  a  bill 
which  affects  the  place  and  nothing  but  the  place,  that  is  con- 
clusive. Nobody  else  has  any  business  to  interfere.  This 
rule  is  the  more  readily  accepted,  because  its  application  all 
round  serves  the  private  interest  of  every  member  alike,  while 
members  of  more  enlarged  views,  who  ought  to  champion  the 
interests  of  the  State  and  sound  general  principles  of  legisla- 
tion, are  rare.  When  such  is  the  accepted  doctrine  as  well  as 
invariable  practice,  log-rolling  becomes  natural  and  almost 
legitimate.  Each  member  being  the  judge  of  the  measure 
which  touches  his  own  constituency,  every  other  member  sup- 
ports that  member  in  passing  the  measure,  expecting  in  return 
the  like  support  in  a  like  cause.  He  who  in  the  public  interest 
opposes  the  bad  bill  of  another,  is  certain  to  find  that  other 
opposing,  and  probably  with  success,  his  own  bill  however 
good. 

The  defects  noted  (Chapters  XIV.-XVII.)  as  arising  in 
Congress  from  the  want  of  recognised  leadership  and  of  per- 
sons officially  bound  to  represent  and  protect  the  interests  of 
the  people  at  large  reappear  in  the  State  legislatures,  on  a 
smaller  scale,  no  doubt,  but  in  an  aggravated  form,  because  the 
level  of  ability  is  lower  and  the  control  of  public  opinion  less. 
There  is  no  one  to  withstand  the  petty  localism  already  referred 
to ;  no  one  charged  with  the  duty  of  resisting  proposals  which 
some  noisy  section  may  demand,  but  whose  ultimate  mischief, 
or  pernicious  effect  as  precedents,  thoughtful  men  perceive. 


CHAP.  XLiv       WORKING   OF   STATE   GOVERNMENTS  545 

There  are  members  for  districts,  but  no  members  for  the  people 
of  the  State.  Thus  many  needless  bills  and  many  bad  bills 
are  passed.  And  when  some  difficult  question  arises,  it  may 
happen  that  no  member  is  found  able  to  grapple  with  it.  Some- 
times the  governor  comes  to  the  rescue  by  appointing  a  com- 
mission of  eminent  men  to  devise  and  suggest  to  the  legislature 
a  measure  to  deal  with  the  question.  Sometimes  the  Consti- 
tution contains  a  provision  that  the  judges  shall  report  upon 
all  defects  in  the  judicial  system  in  order  that  the  needed 
reform  may  be  thereupon  carried.  Such  are  the  roundabout 
ways  in  whicJi  efforts  are  made  to  supply  the  want  of  capacity 
in  the  legislators,  and  the  absence  of  a  proper  system  of  co- 
operation between  the  executive  and  legislative  departments. 

There  is  in  State  legislators,  particularly  in  the  West,  a 
restlessness  which,  coupled  with  their  limited  range  of  knowl- 
edge and  undue  appreciation  of  inaterial  interests,  makes  them 
rather  dangerous.  Meeting  for  only  a  few  weeks  in  the  year,  or 
probably  in  two  years,  they  are  alarmingly  active  during  those 
weeks,  and  run  measures  through  whose  results  are  not  appre- 
hended till  months  afterwards.  It  is  for  this  reason,  no  less 
than  from  the  fear  of  jobbery,  that  the  meeting  of  the  legis- 
lature is  looked  forward  to  with  anxiety  by  the  "good  citizens" 
in  these  communities,  and  its  departure  hailed  as  a  deliverance. 
I  once  asked  the  governor  of  a  far  Western  commonwealth 
how  he  got  on  with  his  legislature.  "  I  won't  say  they  are 
bad  men,"  he  answered,  "  but  the  pleasantest  sight  of  the  year 
to  me  is  when  at  the  end  of  the  session  I  see  their  coat  tails 
go  round  the  street  corner." 

Both  this  restlessness  and  the  general  character  of  State 
legislation  are  illustrated  by  the  enormous  numbers  of  bills  in- 
troduced in  each  session,  comparatively  few  of  which  pass, 
because  the  time  is  too  short,  or  opposing  influences  can  be 
brought  to  bear  on  the  committees. 

There  were  introduced  (in  the  sessions  of  1885  or  1886)  — 

In  Alabama  1469  bills    (442  passed) 

"  Kentucky         2390    "     (1400       " 
"  Illinois  1107    "       (131       " 

"  Pennsylvania  10(55    "       (221       " 
"  New  York       2093    "       (681       " 
VOL.  I  2  N 


546  THE   STATE    GOVERNMENTS  part  ii 

In  ten  States  the  total  number  of  bills  introduced  was 
12,449,  of  which  3793  passed.  The  vast  majority  of  these 
bills  were  local  or  special.^  In  1889  there  were  introduced 
in  the  legislatures  of  eleven  States  10,838  public  bills,  of  which 
only  1878  were  passed,  besides  3639  private  Acts  passed  in  four 
of  these  States.^  In  South  Carolina,  during  the  four  years 
preceding  1886,  out  of  about  900  Acts  passed,  only  256  related 
to  matters  of  general  public  concern.  Acts  of  incorporation, 
grants  of  inheritance,  changes  of  names  and  releases  from 
indebtedness,  had  consumed  a  large  proportion  of  the  time  of 
the  legislature  at  a  great  public  expense,  and  to  the  serious 
detriment  of  the  State.  Yet  South  Carolina  is  not  a  State  in 
which  there  is  much  capital  or  many  large  undertakings.  The 
place  which  the  petty  matters  mentioned  take  in  it  would,  in 
more  prosperous  communities,  be  taken  by  bills  relating  to 
railroad  and  other  companies,  and  to  cities.  The  expense  to 
which  the  States  are  put  by  their  legislatures,  with  results 
rather  injurious  than  beneficial,  is  very  great. 

"  In  South  Carolina,  where  the  session  is  short,  the  cost  is  reported 
by  the  secretary  of  state  at  only  $52,000.  But  in  Pennsylvania,  with 
158  days  of  session,  it  is  $686,500  (£137,300).  In  Connecticut  the  last 
session  of  ninety  days  cost  $98,000,  while  the  general  expenses  of  the 
legislature  of  California  are  $130,000  for  a  session  of  sixty  days.  The 
cost  of  printing,  of  travelling,  and  other  incidental  expenses  must  be 
added  in  order  to  form  an  accurate  estimate  of  the  burden  imposed  on  the 
tax-payers  of  the  States  to  carry  on  this  badly-managed  business  of  law- 
making, which  varies  from  a  daily  average  cost  of  about  $1000  per  diem 

1  Even  among  the  Acts  which  aijpear  in  the  statute-boolts  of  the  States, 
under  the  heading  of  general  laws  there  are  many  of  a  local  or  sijecial 
character.  I  find,  on  referring  to  the  laws  of  Louisiana  passed  in  1880,  that 
of  96  so-called  general  Acts  passed,  30  were  really  local  or  special.  In 
Nebraska,  in  1887,  there  were  passed  114  general  Acts,  22  of  which,  while 
classed  among  general  laws,  were  really  local  or  personal,  and  17  were 
described  as  special.  In  Minnesota,  in  1887,  of  265  classed  as  general  Acts,  36 
seem  from  their  titles  to  be  local  or  si^ecial.  But  it  is  not  always  easy  to  dis- 
cover the  substance  from  the  title,  so  the  number  of  special  Acts  classed  as 
general  may  be  still  larger.  Some  States  {e.g.  Wyoming)  now  forbid  the 
passing  of  any  private  Acts. 

As  remarked  in  an  earlier  chapter,  the  total  number  of  bills  of  all  kinds 
introduced  in  1885  into  the  British  Parliament,  which  is  the  sole  legislative 
authority  for  a  population  of  thirty-eight  millions,  was  481,  of  which  282 
passed. 

2  I  take  these  figures  from  the  presidential  address  of  Mr.  Henry  Hitchcock 
to  the  American  Bar  Association  at  its  annual  meetinji  in  1890. 


CHAP.  XLiv       WOEKING   OF   STATE   GOVERNMENTS  547 

for  every  legislative  session  to  over  -$4000  per  diem,  making  an  aggregate 
in  the  total  number  of  States,  and  in  Congress,  which  it  is  impossible  to 
ascertain  with  exactness,  but  which  cannot,  I  think,  be  less  than 
$10,000,000  (£2,000,000),  not  as  an  exceptional  outlay,  but  as  the  price 
paid  for  current  legislation."  ^ 

Kothing  is  more  remarkable  about  these  State  legislators 
than  their  timidity.  No  one  seems  to  think  of  having  an 
opinion  of  his  own.  In  matters  which  touch  the  interests  of 
his  constituents,  a  member  is,  of  course,  their  humble  servant. 
In  burning  party  questions — they  are  few,  and  mostly  personal 
—  he  goes  with  his  party.  In  questions  of  general  public 
policy  he  looks  to  see  how  the  cat  jumps;  and  is  ready  to  vote 
for  anything  which  the  people,  or  any  active  section  of  the 
people,  cry  out  for,  though  of  course  he  may  be  secretly  un- 
friendly, and  may  therefore  slyly  try  to  spoil  a  measure. 
This  want  of  independence  has  some  good  results.  It  enables 
a  small  minority  of  zealous  men,  backed  by  a  few  uewspaj)ers, 
to  carry  schemes  of  reform  which  the  majority  regard  with 
indifference  or  hostility.  Thus  in  bodies  so  depraved  as  the 
legislatures  of  New  York  and  Pennsylvania,  bills  have  lately 
been  passed  improving  the  charters  of  cities,  creating  a  secret 
ballot,  and  even  establishing  an  improved  system  of  appoint- 
ments to  office.  A  few  energetic  reformers  went  to  Albany 
and  Harrisburg  to  strengthen  the  hands  of  the  little  knot  of 
members  who  battle  for  good  government  there,  and  partly 
frightened,  partly  coaxed  a  majority  of  the  Senate  and  House 
into  adopting  proposals  opposed  to  the  interests  of  professional 
politicians.  Some  ten  years  ago,  two  or  three  high-minded 
and  sagacious  ladies  obtained  by  their  presence  at  Albany  the 
introduction  of  reforms  into  the  charitable  institutions  of  New 
York  city.  The  ignorance  and  heedlessness  of  the  "profes- 
sionals," who  do  not  always  see  the  results  of  legislative 
changes,  and  do  not  look  forward  beyond  the  next  few  months, 
help  to  make  such  triumphs  possible  ;  and  thus,  as  the  Bible 
tells  us  that  the  wrath  of  man  shall  praise  God,  the  faults  of 
politicians  are  turned  to  work  for  righteousness. 

In  the  recent  legislation  of  many  States,  especially  West- 
ern States,  there  is  a  singular  mixture  of  philanthropy  and 
humanitarianism  with  the  folly  and  jobbery  I  have  described, 

1  Address  of  Mr.  W.  A.  Butler  to  the  American  Bar  Associutiou  in  1886. 


518  THE    STATE   GOVERNMENTS  part  ii 

like  threads  of  gold  and  silver  woven  across  a  warp  of  dirty- 
sacking.  Every  year  sees  bills  passed  to  restrict  the  sale  of 
liquor,  to  prevent  the  sale  of  indecent  or  otherwise  demoraliz- 
ing literature,  to  protect  women  and  children,  to  stamp  out 
lotteries  and  gambling  houses,  to  improve  the  care  of  the 
blind,  the  insane,  and  the  poor,  which  testify  to  a  warm  and 
increasing  interest  in  all  good  works.  These  measures  are  to 
be  explained,  not  merely  by  that  power  which  an  active  and 
compact  minority  enjoys  of  getting  its  own  way  against  a 
crowd  of  men  bent  each  on  his  own  private  gain,  and  therefore 
not  working  together  for  other  purposes,  but  also  by  the  real 
sympathy  which  many  of  the  legislators,  especially  in  the 
rural  districts,  feel  for  morality  and  for  suffering.  Even  the 
corrupt  politicians  of  Albany  were  moved  by  the  appeals  of 
the  philanthropic  ladies  to  whom  I  have  referred ;  much  more 
then  would  it  be  an  error  to  think  of  the  average  legislator  as 
a  bad  man,  merely  becavise  he  will  join  in  a  job,  or  deal 
unfairly  with  a  railroad.  The  moral  standard  of  Western 
America  is  not  quite  the  same  as  that  of  England,  just  as  the 
standard  of  England  differs  from  that  of  Germany  or  France. 
It  is  both  higher  and  lower.  Some  sins  excite  more  anger 
or  disgust  than  they  do  in  England ;  some  are  more  lightly- 
forgiven,  or  more  quickly  forgotten.  Laxity  in  the  discharge 
of  a  political  trust  belongs  to  the  latter  category.  The  news- 
papers accuse  everybody  ;  the  ordinary  citizen  can  seldom  tell 
who  is  innocent  and  who  is  guilty.  He  makes  a  sort  of  com- 
promise in  his  own  mind  by  thinking  nobody  quite  black,  but 
everybody  gray.  And  he  goes  on  to  think  that  what  every- 
body does  cannot  be  very  sinful. 


CHAPTER   XLV 

REMEDIES    FOR    THE    FAULTS    OF    STATE    GOVERNMENTS 

The  defects  in  State  governments,  Avhich  our  examination 
of  their  working  has  disclosed,  are  not  those  we  should  have 
expected.  It  might  have  been  predicted,  and  it  was  at  one 
time  believed,  that  these  authorities,  consumed  by  jealousy  and 
stimulated  by  ambition,  Avould  have  been  engaged  in  constant 
efforts  to  extend  the  sphere  of  their  action  and  encroach  on 
the  National  government.  This  does  not  happen,  and  seems 
most  unlikely  to  happen.  The  people  of  each  State  are 
now  not  more  attached  to  the  government  of  their  own 
commonwealth  than  to  the  Federal  government  of  the  nation, 
whose  growth,  has  made  even  the  greatest  State  seem  insig- 
nificant beside  it. 

A  study  of  the  frame  of  State  government,  in  which  the 
executive  department  is  absolutely  severed  from  the  legisla- 
tive, might  have  suggested  that  the  former  would  become  too 
independent,  misusing  its  powers  for  personal  or  party  pur- 
poses, while  public  business  would  suffer  from  the  want  of  con- 
cert between  the  two  great  authorities,  that  which  makes  and 
that  which  carries  out  the  law. 

This  also  has  proved  in  practice  to  be  no  serious  evil.  The 
legislature  might  indeed  conceivably  work  better  if  the  gov- 
ernor, or  some  of  his  chief  officials,  could  sit  in  it  and  exercise 
an  influence  on  its  deliberations.  Such  an  adaptation  of  the 
English  cabinet  system  has,  however,  never  been  thought  of 
for  American  States  ;  and  the  example  of  the  Provincial  legis- 
latures of  Canada,  in  each  of  which  there  is  a  responsible 
ministry  sitting  in  the  legislature,  does  not  seem  to  have 
recommended  it  for  imitation.  Those  who  founded  the  State 
governments  did  not  desire  to  place  any  executive  leaders  in 
a  representative   assembly.     Probably   they  were   rather   in- 


550  THE   STATE   GOVERNMENTS  part  ii 

clinecl  to  fear  that  the  governor,  not  being  accountable  to  the 
legislature,  Avould  retain  too  great  an  independence.  The 
recent  creation  of  various  administrative  officers  or  Boards 
has  gone  some  way  to  meet  the  difficulties  which  the  incom- 
petence of  the  legislatures  causes,  for  these  officers  or  Boards 
frequently  prepare  bills  which  some  member  of  the  legislature 
introduces,  and  which  are  put  through  without  opposition, 
perhaps  even  without  notice,  except  from  a  handful  of  mem- 
bers. On  the  whole,  the  executive  arrangements  of  the  State 
work  well,  though  they  might,  in  the  opinion  of  some  judicious 
publicists,  be  improved  by  vesting  the  appointment  of  the 
chief  officials  in  the  governor,  instead  of  leaving  it  to  direct 
popular  election.  This  would  tend  to  give  more  unity  of  pur- 
pose and  action  to  the  administration.  The  collisions  which 
occur  in  practice  between  the  governor  and  the  legislature 
relate  chiefly  to  appointments,  that  is  to  say,  to  personal 
matters,  not  involving  issues  of  State  policy. 

The  real  blemishes  in  the  system  of  State  government  are  all 
found  in  the  composition  or  conduct  of  the  legislatures.  They 
are  the  following  :  — 

Inferiority,  as  respects  knowledge,  skill,  and  sometimes  also 
conscience,  of  the  bulk  of  the  men  who  fill  these  bodies. 

Improvidence  in  matters  of  finance. 

Heedlessness  in  passing  administrative  bills. 

Want  of  proper  methods  for  dealing  with  local  and  special 
bills. 

Failure  of  public  opinion  adequately  to  control  legislation, 
and  particularly  local  and  special  bills. 

The  practical  result  of  these  blemishes  has  been  to  create  a 
large  mass  of  State  and  local  indebtedness  which  ought  never 
to  have  been  incurred,  to  allow  foolish  experiments  in  law- 
making to  be  tried,  and  to  sanction  a  vast  mass  of  private  en- 
terprises, in  which  public  rights  and  public  interests  become  the 
sport  of  speculators,  or  a  source  of  gain  to  monopolists,  with 
the  incidental  consequence  of  demoralizing  the  legislators 
themselves  and  creating  an  often  unjust  prejudice  against  all 
corporate  undertakings. 

What  are  the  checks  or  remedies  which  have  been  provided 
to  limit  or  suppress  these  evils  ?  Any  one  who  has  followed 
the  account  given  of  the  men  who  compose  the  legislatures  and 


CHAP.  XLV  REMEDIES   FOR   THEIR   FAULTS  551 

the  methods  they  follow  will  have  felt  that  these  checks  must 
be  considerable,  else  the  results  would  have  been  worse  than 
those  we  see.  All  remedies  are  directed  against  the  legislative 
power,  and  may  be  arranged  under  four  heads. 

First,  there  is  the  division  of  the  legislature  into  two  houses. 
A  job  may  have  been  smuggled  through  one  house,  but  the 
money  needed  to  push  it  through  the  other  may  be  wanting. 
Some  wild  scheme,  professing  to  benefit  the  farmers,  or  the 
cattlemen,  or  the  railroad  employes,  may,  during  its  passage 
through  the  Assembly,  rouse  enough  attention  from  sensible 
people  to  enable  them  to  stop  it  in  the  Senate.  The  mere  ten- 
dency of  two  chambers  to  disagree  with  one  another  is  deemed 
a  benefit  by  those  who  hold,  as  the  Americans  do,  that  every 
new  measure  is  j^rima  facie  likely  to  do  more  harm  than  good. 
Most  bills  are  bad  —  ergo,  kill  as  many  as  you  can.  Each 
house,  moreover,  has,  even  in  such  demoralized  State  legis- 
latures as  those  of  New  York  or  Pennsylvania,  a  satisfac- 
tion, if  not  an  interest,  in  unveiling  the  tricks  of  the  other. 

Secondly,  there  is  the  veto  of  the  governor.  How  much  the 
Americans  value  this  appears  from  the  fact  that,  whereas  in 
1789  there  was  only  one  State,  Massachusetts,  which  vested 
this  power  in  the  chief  magistrate,  all  of  the  now  existing 
States  except  four  give  it  to  him.  Some  constitutions  (includ- 
ing all  the  new  ones)  contain  the  salutary  provision  that  the 
governor  may  reject  one  or  more  items  of  an  appropriation 
bill  (sometimes  even  of  any  bill)  while  approving  the  bill 
as  a  whole ;  and  this  has  been  found  to  strengthen  his  hands 
immensely  in  checking  the  waste  of  public  money  on  bad  en- 
terprises. This  veto  power,  the  great  stand-by  of  the  people 
of  the  States,  illustrates  admirably  the  merits  of  concentrated 
responsibility.  The  citizens,  in  choosing  the  governor  to  rep- 
resent the  collective  authority  of  the  whole  State,  lay  on  him 
the  duty  of  examining  ever}'-  bill  on  its  merits.  He  cannot 
shelter  himself  behind  the  will  of  the  representatives  of  the 
people,  because  he  is  appointed  to  watch  and  check  those  rep- 
resentatives as  a  policeman  watches  a  suspect.  He  is  bound  to 
reject  the  bill,  not  only  if  it  seems  to  him  to  infringe  the 
Constitution  of  the  State,  but  also  if  he  thinks  it  in  any  wise 
injurious  to  the  public,  on  pain  of  being  himself  suspected  of 
carelessness,  perhaps  of  complicity  in  some  corrupt  design. 


552  THE   STATE  GOVERNMENTS  part  n 

The  legislature  may,  of  course,  pass  the  bill  over  his  veto  by 
a  two-thirds  vote ;  but  although  there  may  exist  a  two-thirds 
majority  in  favour  of  the  measure,  they  may  fear,  after  the 
veto  has  turned  the  lamp  of  public  opinion  upon  it,  to  take  so 
strong  a  step.  There  are,  of  course,  great  differences  between 
one  governor  and  another,  as  well  as  between  one  State  and 
another,  as  regards  the  honesty  with  which  the  power  is  exer- 
cised, for  it  may  be,  and  sometimes  is,  used  by  a  "Eing" 
governor  to  defeat  measures  of  reform.  But  it  is  a  real  and 
effective  power  everywhere ;  and  in  the  greatest  States,  where 
the  importance  of  the  office  sometimes  secures  the  election  of 
an  able  and  courageous  man,  it  has  done  excellent  service.^ 

Thirdly,  there  are  limitations  imposed  on  the  competence  of 
the  legislature.  I  have  already  mentioned  some  of  these  lim- 
itations, the  most  numerous,  and  at  present  the  most  important 
of  which  relate  to  special  and  local  (or  what  would  be  called 
in  England  "private")  bills.  These  bills,  while  they  destroy 
the  harmony  and  simplicity  of  the  law,  and  consume  the  time 
of  the  legislature,  are  also  so  fertile  a  source  of  jobbery^  that 
to  expunge  them  or  restrict  them  to  cases  where  a  special 

^  Although  the  existence  of  this  ultimate  remedy  tends  to  make  good  mem- 
bers relax  their  opposition  to  bad  bills,  because  they  know  that  the  veto  will 
kill  them,  this  is  a  less  evil  than  the  disuse  of  the  veto  would  be. 

2  "  In  twelve  States  the  legislature  is  forbidden  to  create  any  corporation 
whatever,  municipalities  included,  except  by  general  law,  and  in  thirteen 
others  to  create  by  special  Act  any  except  municipal  corporations,  or  those  to 
which  no  other  law  is  applicable.  In  some  States  corporations  can  be  created 
by  special  Act  only  for  municipal,  charitable,  or  reformatory  purposes.  Such 
provisions  are  not  intended  to  discourage  the  formation  of  private  corpora- 
tions. On  the  contrary,  in  all  these  States  general  laws  exist  under  which  they 
can  be  formed  with  great  facility.  Indeed  the  defects  in  some  of  these  statutes, 
and  their  failure  to  provide  safeguards  against  some  at  least  of  the  very  evils 
which  they  were  intended  to  meet,  might  well  suggest  to  legislators  the  ques- 
tion whether  in  avoiding  the  Scylla  of  special  legislation  they  have  not  been 
drawn  into  the  Charybdis  of  franchises  indiscriminately  bestowed.  Perhaps 
the  time  will  come  when  recommendations  such  as  those  urged  by  the  New 
York  railroad  commission  will  be  acted  on,  and  the  promoters  of  a  new  rail- 
road will  be  obliged  to  furnish  some  better  reason  for  its  existence,  and  for 
their  exercising  the  sovereign  power  of  eminent  domain,  than  the  chance  of 
forcing  a  company  already  established  to  buy  tliem  out  —  or,  failing  that,  the 
alternative  of  being  sold  out  under  foreclosure,  pending  a  receivership."  — 
Hitchcock,  State  Constitutions,  p.  30. 

'"A  great  field  for  favouritism  and  jobbery  exists,  when  special  Acts  of  in- 
corporation are  required  for  each  case  in  which  special  favours  and  special 
privileges  may  be  given  away  by  a  legislature  that  may  be  corruptly  influ- 
enced, without  imposing  any  reciprocal  obligation  on  the  corporation.    Fully 


CHAP.  XLV  REMEDIES  FOR   THEIR   FAULTS  553 

statute  was  really  needed,  would  be  a  great  benefit.  The  con- 
stitutional prohibitions  described  effect  this  to  some  extent. 
Illinois,  for  instance,  has  by  such  prohibitions  reduced  her 
sessional  statutes  to  about  300  pages,  and  Iowa  averages  only 
200-250  pages,  whereas  the  Wisconsin  statutes  of  1885  reached 
2000  pages,  there  being  in  that  State  far  less  effective  restric- 
tions. But  the  powers  of  evil  do  not  yield  without  a  battle. 
All  sorts  of  evasions  are  tried,  and  some  succeed.  For  instance, 
there  is  a  prohibition  in  the  Constitution  of  New  York  to  pass 
any  but  general  laws  relating  to  the  government  of  cities. 
An  Act  is  passed  which  is  expressed  to  apply  to  cities  with  a 
population  exceeding  one  hundred  thousand,  but  less  than  two 
hundred  thousand.  There  happens  to  be  only  one  such  city 
in  the  State,  viz.  Buffalo,  but  as  there  might  be  more,  the  law 
is  general,  and  escapes  the  prohibition.  So  the  Constitution 
of  Ohio  expressly  provides  that  the  legislature  "  shall  pass  no 
special  act  conferring  corporate  powers."  But  in  1890  nearly 
fifty  such  acts  were  passed,  the  provision  being  evaded  by  the 
use  of  general  enacting  words  which  can  in  fact  apply  only  to 
one  place.  One  act,  for  instance,  authorized  villages  with  a 
population  of  not  less  than  1903  nor  more  than  1912  to  issue 
bonds  for  natural  gas  developments ;  another  empowers  any 
city  having  a  population  of  15,435,  by  the  census  of  1890,  to 
levy  a  library  tax.* 

Provisions  against  special  legislation  are  also  evaded  in 
another  way,  viz.  by  passing  Acts  which,  because  they  purport 
to  amend  general  Acts,  are  themselves  deemed  general.  Here 
is  a  recent  instance.  The  Constitution  of  New  York  prohibits 
the  legislature  from  passing  any  private  or  local  Act  incorpo- 
rating villages,  or  providing  for  building  bridges.  A  general 
Act  was  passed  in  1885  for  the  incorporation  of  villages,  with 
general  provisions  as  to  bridges.  Next  year  the  following  Act 
was  passed,  which  I  give  verbatim.  It  amends  the  Act  of 
1885,  by  taking  out  of  it  all  the  counties  in  the  State  except 

two-thirds  of  thelobbyism,  jobbery,  and  log-rolling,  the  fraud  and  trickery  that 
are  common  to  our  State  legislatures,  is  due  to  this  power  of  creating  private 
corporations."  —  Ford,  Citizens'  MkhkoI,  ii.  p.  G8. 

1  Mr.  Hitchcock  (from  whose  address  I  take  the  Ohio  instance)  adds  that  the 
Supreme  court  of  Ohio  has  held  such  evasions  unconstitutional,  but  that  they 
continue  notwithstanding,  the  legislature,  and  the  villages  or  cities  taking 
their  chance. 


554  THE   STATE   GOVERNMENTS  part  n 

Westchester,  and  then  excludes  the  application  of  the  Act  to 

two  towns  in  Westchester.     It  is  thus  doubly  a  "  private  or 

local   Act,"  but   the   prohibition   of   the  Constitution   is   got 

round.  ^ 

CHAP.  556. 

AN  ACT  to  amend  chapter  two  hundred  and  ninety-one  of  the  laws  of 
eighteen  hundred  and  seventy,  entitled  "An  Act  for  the  Incorporation  of 

Villages." 

Passed  June  4,  1886  ;   three-fifths  being  present. 

The  People  of  the  State  of  New  York,  represented 

in  Senate  and  Assembly,  do  enact  as  follows  :  — 
Section  1.  —  Section  two  of  chapter  four  hun- 
ViUage  Incorporation  dred  and  fifty  of  the  laws  of  eighteen  hundred  and 

eighty-five,  is  hereby  amended  so  as  to  read  as 

Act  or  1885,  as  to  b     j  ■> 

follows  :  — 
bridges,  to  apply  Section  2.  —All  of  the  counties  in  this  State  are 

only  to  part  of  hereby  exempted  from  the  provisions  of  this  Act 

„,      ^         ,^  except  the  county  of  Westchester,  but  nothing  in 

Westchester  County.  ,  .     ,  .       i    ,     ,,  ,  x        i  4.  i 

this  Act  contained  shall  be  construed  so  as  to  apply 

to  the  towns  of  Greenburgh  and  Mount  Pleasant 
in  said  county  of  Westchester. 

Section  3.  —  This  Act  shall  take  effect  immedi- 
ately. 

Where  evasions  of  this  kind  become  frequent  the  confusion 
of  the  statute-book  is  worse  than  ever,  because  you  cannot  tell 
without  examination  whether  an  Act  is  general  or  special. 

The  reader  will  have  noticed  in  the  heading  of  the  Act  just 
quoted  the  words  "three-fifths  being  present."  This  is  one 
of  the  numerous  safeguards  imposed  on  the  procedure  of  the 
State  legislatures.  Others  have  been  specified  in  Chapter  XL. 
Their  abundance  in  the  newest  Constitutions  shows  how  these 
efforts  to  deal  with  the  symptoms  have  failed  to  eradicate  the 
disease,  and  their  increasing  minuteness  bears  witness  to  the 
endless  evasions  they  seek  to  anticipate.^ 

1  The  Constitution  of  North  Dakota  (§  70)  expressly  prohibits  this  evasion. 

2  For  instance,  it  is  sometimes  provided  that  no  bill  shall  be  introduced  within 
a  certain  period  after  tlie  beginning  or  before  the  end  of  the  session,  so  as  to 
prevent  bills  from  being  smuggled  through  in  the  last  days.  This  provision  is 
evaded  "  by  introducing  a  new  bill  after  the  time  has  expired  when  it  may  con- 
stitutionally be  done,  as  an  amendment  to  some  pending  bill,  the  whole  of 
wliich,  except  the  enacting  clause,  is  struck  out  to  make  way  for  it.  Thus,  the 
member  who  thinks  he  may  have  occasion  for  the  introduction  of  a  new  bill 
after  the  constitutional  period  has  expired,  takes  care  to  introduce  sham  bills 
in  due  season,  which  he  can  use  as  stocks  to  graft  upon,  and  which  he  uses 
irrespective  of  their  character  or  contents.    The  sham  bill  is  perhaps  a  bill  to 


CHAP.  XLV  REMEDIES   FOR   THEIR   FAULTS  555 

The  inventive  genius  of  American  legislators  finds  or  makes 
many  holes  in  the  net  which  the  people  have  tried  to  throw 
over  them  by  the  Constitution.  Yet,  though  there  be  none  of 
the  restrictions  mentioned  which  is  not  sometimes  violated  or 
evaded,  they  have,  on  the  whole,  worked  well.  The  enemy  is 
held  at  bay,  and  a  great  deal  of  bad  legislation  is  prevented. 
Some  bills  have  to  be  dropped,  because  too  plainly  repugnant  to 
the  Constitution  to  be  worth  carrying  farther.  The  more  igno- 
rant members  do  not  always  apprehend  where  the  difficulty  lies. 
They  can  barely  read  the  Constitution,  and  the  nature  of  its 
legal  operation  is  as  far  beyond  them  as  the  cause  of  thunder  is 
beyond  cats.  A  friend  of  mine  who  sat  for  some  years  in  the 
New  York  Assembly  was  once  importuned  by  an  Irish  member 
to  support  that  particular  member's  little  bill.  He  answered 
that  he  could  not,  because  the  bill  was  against  the  Constitu- 
tion. "Och,  Mr.  Kobert,"  was  the  reply,  "shure  the  Con- 
stitootion  should  never  be  allowed  to  come  between  frinds." 

Some  bills  again  the  governor  can  scarcely  help  vetoing, 
because  they  violate  a  Constitutional  restriction ;  while  of 
those  that  pass  him  unscathed,  a  fair  number  fall  victims 
to  the  courts  of-  law.  It  may  be  added  that  the  enforcement 
of  the  limitations  imposed  by  a  State  Constitution  necessarily 
,  rests  with  the  judges,  since  it  is  they  who  pronounce,  if  and 
when  the  point  is  brought  up  in  a  suit  between  parties, 
whether  or  no  a  statute  has  transgressed  the  bounds  which 
the  fundamental  instrument  sets,  or  whether  a  Constitutional 
amendment  has  been  duly  carried.^ 

incorporate  the  city  of  Siam.  One  of  the  memher's  constituents  applies  to 
him  for  legislative  permission  to  construct  a  dam  across  the  Wild  Cat  River. 
Forthwith,  by  amendment,  the  hill,  entitled  a  hill  to  incorporate  the  city  of 
Siam,  has  all  after  the  enacting  clause  stricken  out,  and  it  is  made  to  provide, 
as  its  sole  object,  that  John  Doe  may  construct  a  dam  across  the  Wild  Cat. 
With  this  title,  and  in  this  form  it  is  passed  ;  but  the  house  then  considerately 
amends  the  title  to  correspond  with  the  purpose  of  the  bill,  and  the  law  is 
passed,  and  the  Constitution  at  the  same  time  saved !"  — Cooley,  Constit. 
Limit,  p.  109  note. 

1  A  remarkable  instance  of  the  technical  literalism  with  which  the  courts 
sometimes  enforce  Constitutional  restrictions  is  afforded  by  the  fate  of  a 
recent  liquor  Prohibition  amendment  to  the  Constitution  of  Iowa.  This 
amendment  had  been  passed  by  both  Houses  of  the  State  legislature  in  two 
successive  legislatures,  had  been  submitted  to  the  people  and  enacted  by  a 
large  majority,  hiid  been  proclaimed  by  the  governor  and  gone  into  force. 
It  was  subsequently  discovered  that  one  House  of  the  first  legislature  had, 


556  THE   STATE   GOVERNMENTS  part  n 

Some  one  may  remark  that  there  are  two  material  differ- 
ences between  the  position  of  these  State  judges  and  that  of 
the  Federal  judges.  The  latter  are  not  appointed  by  a  State, 
and  are  therefore  in  a  more  independent  jjosition  when  any 
question  of  conflict  between  State  laws  or  Constitutions  and 
the  Federal  Constitution  or  statutes  comes  before  them. 
Moreover  they  hold  office  for  life,  whereas  the  State  judge 
usually  holds  for  a  term  of  years,  and  has  his  re-election  to 
think  of.  Can  the  State  judge  then  be  expected  to  show  him- 
self equally  bold  in  declaring  a  State  statute  to  be  unconsti- 
tutional ?  Will  he  not  offend  the  legislature,  and  the  party 
managers  who  control  it,  by  flying  in  their  faces  ? 

The  answer  is  that  although  the  judge  may  displease  the 
legislature  if  he  decides  against  the  validity  of  an  unconstitu- 
tional statute,  he  may  displease  the  people  if  he  decides  for  it ; 
and  it  is  safer  to  please  the  people  than  the  legislature.  The 
people  at  large  may  know  little  about  the  matter,  but  the  legal 
profession  know,  and  are  sure  to  express  their  opinion.  The 
profession  look  to  the  courts  to  save  them  and  their  clients 
from  the  heedlessness  or  improbity  of  the  legislature,  and  will 
condemn  a  judge  Avho  fails  in  this  duty.  Accordingly,  the 
judges  seldom  fail.  They  knock  about  State  statutes  most 
unceremoniously,  and  they  seldom  suffer  for  doing  so.  In  one 
case  only  is  their  position  a  dangerous  one.  When  the  people, 
possessed  by  some  strong  desire  or  sentiment,  have  either  by 
the  provisions  of  a  new  Constitution,  or  by  the  force  of  clamour, 
driven  the  legislature  to  enact  some  measure  meant  to  cure  a 
pressing  ill,  they  may  turn  angrily  upon  the  judge  who  holds 
that  measure  to  have  been  unconstitutional.  This  has  several 
times  happened,  and  is  always  liable  to  happen  where  elective 
judges  hold  office  for  short  terms,  with  the  unfortunate  result 
of  weakening  the  fortitude  of  the  judges.     In  1786  the  supreme 

through  the  carelessness  of  a  clerk,  neglected  to  "  spread  the  Amendment,  in 
full  on  its  journal,"  as  prescribed  by  the  Constitution.  The  point  being  brought 
before  the  Supreme  Court  of  Iowa,  it  was  held  that  the  Amendment,  owing  to 
this  informality,  had  not  been  duly  passed,  and  was  wholly  void. 

"  An  illustration  of  the  range  which  the  action  of  courts  may  take  in  enforc- 
ing Constitutional  safeguards  was  recently  given  by  the  Supreme  Court  of 
Wisconsin,  when  it  held  invalid  a  re-districting  of  the  State  (for  elections  to 
the  State  legislature) ,  as  being  inconsistent  with  the  provision  of  the  Constitu- 
tion that  districts  should  be  reasonaljly  equal.  Such  checks  on  gerrymander- 
ing are  necessary,  and  it  is  only  thus  that  they  can  be  made  effective." 


CHAP.  XLv  REMEDIES   FOR   THEIR   FAULTS  557 

court  of  Khode  Island  decided  that  an  Act  passed  by  the  legis- 
hiture  was  invalid,  because  cOTitravening  the  provisions  of  the 
Colonial  Charter  (which  was  then  still  the  Constitution  of  the 
State),  securing  to  every  accused  person  the  benefit  of  trial  by 
jury.^  The  legislature  were  furious,  and  summoned  the  judges 
to  appear  before  them  and  explain  the  grounds  of  their  deci- 
sion. The  attempt  to  dismiss  them  failed,  but  the  judges  were 
not  re-elected  by  the  legislature  when  their  term  of  office  expired 
at  the  end  of  the  year.  In  Ohio,  the  legislature  passed  in  1805 
an  Act  which  Judge  Pease,  in  a  case  arising  under  it,  held  to 
be  repugnant  to  the  Constitution  of  Ohio,  as  well  as  to  the 
Federal  Constitution,  and  accordingly  declined  to  enforce. 
In  1808,  he  and  another  judge  of  the  supreme  court  of  the 
State  who  had  concurred  with  him,  were  impeached  by  the 
House  before  the  Senate  of  Ohio,  but  were  acquitted.  In 
1823,  the  Supreme  Court  of  Kentucky  held  invalid  a  Debtors' 
Eelief  act  passed  by  the  legislature  on  the  ground  that  it 
violated  the  obligation  of  contracts  clause  of  the  Federal  Con- 
stitution by  making  paper  issued  by  a  State  bank  legal  tender. 
The  judges  were  impeached,  but  a  two-thirds  majority  for  con- 
viction could  not  be  obtained,  so  the  angry  legislature  extin- 
guished the  court  itself  and  created  a  new  court  of  Appeals, 
to  which  the  governor  appointed  new  men  as  judges.  The 
old  court,  however,  held  its  ground,  insisting  that  the  new 
court  was  unconstitutional,  and  after  a  passionate  struggle,  a 
new  legislature  repealed  in  1825  the  act  creating  the  new 
court.  So  justice  and  reason  prevailed.  In  1871,  the  legislature 
of  Illinois  passed  a  law,  intending  to  carry  out  a  provision 
of  the  Constitution  of  1870,  which  was  held  unconstitutional 
by  Judge  Lawrence,  greatly  to  the  disappointment  of  the 
farmers,  who  had  expected  valuable  results  from  it.  He  was 
not  impeached,  but  when  shortly  afterwards  he  sought  re- 
election, he  was  defeated  solely  on  the  ground  of  this  deci- 

1  See  p.  244,  ante.  The  Act  was  one  for  forcing  State  paper  money  into 
circulation  by  imposing  a  penalty,  recoverable  on  summary  conviction  without 
a  jury,  on  whoever  should  refuse  to  receive  on  the  same  terms  as  specie  the 
bills  of  a  State-chartered  bank.  No  question  of  the  United  States  Constitu- 
tion could  arise,  because  it  did  not  yet  exist.  To  these  Rhode  Island  judges 
belongs  the  credit  not  only  of  having  resisted  an  excited  multitude,  but  of 
liaving  set  one  of  the  first  examples  in  American  history  of  the  exercise  of  a 
salutary  function.    Their  decision  was  that  they  had  no  jurisdiction. 


558  THE   STATE   GOVERNMENTS  part  ii 

sion.^  These  instances  show  that  tlie  courts  have  had  to  hglit 
for  their  freedom  in  the  dischars^  of  the  duty  which  tlie  Con- 
stitutions throw  on  them.  But  the  paucity  of  such  conflicts 
shows  that  this  freedom  is  now  generally  recognized,  and  may 
be  deemed,  at  least  for  the  present,  to  be  placed  above  the 
storms  of  popular  passion.^ 

It  will  be  seen  from  what  has  been  said  that  the  judges  are 
an  essential  part  of  the  machinery  of  State  government.  But 
they  are  so  simply  as  judges,  and  not  as  invested  with  political 
powers  or  duties.  They  have  not  received,  any  more  than  the 
Federal  judges,  a  special  commission  to  restrain  the  legislature 
or  pronounce  on  the  validity  of  its  acts.  There  is  not  a  word 
in  the  State  Constitutions,  any  more  than  in  the  Federal  Con- 
stitutions, conferring  any  such  right  upon  the  courts,  or  indeed 
conferring  any  other  right  than  all  courts  of  law  must  neces- 
sarily enjoy.  When  they  declare  a  statute  unconstitutional 
they  do  so  merely  in  their  ordinary  function   of    expound- 

1 1  quote  from  Mr.  Haclley's  book  on  railroad  transportation  (through  Dr. 
Hitchcocli's  essay  already  referred  to)  the  following  account  of  the  circum- 
stances: — ■"  The  Constitutional  Convention  of  Illinois  in  1870  made  an  impor- 
tant declaration  concerning  State  control  of  railway  rates,  on  the  basis  of  which 
a  law  was  passed  in  1871  establishing  a  system  of  maxima.  This  law  was  pro- 
nounced unconstitutional  by  Judge  Lawrence.  The  result  was  that  he  imme- 
diately afterwards  failed  of  re-election,  solely  on  this  ground.  The  defeat  of 
Judge  Lawrence  showed  the  true  significance  of  the  farmers'  movement  [the 
so-called  Granger  movement].  They  were  concerned  in  securing  what  they 
felt  to  be  their  rights,  and  were  unwilling  that  any  constitutional  barrier 
should  be  made  to  defeat  the  popular  will.  Tliey  had  reached  the  point  where 
they  regarded  many  of  the  forms  of  law  as  mere  technicalities.  They  were 
dangerously  near  the  point  where  revolutions  begin.  But  they  did  not  pass 
the  point.  The  law  of  1873  avoided  the  issue  raised  by  Judge  Lawrence  against 
that  of  1871.  Instead  of  directly  fixing  maxima,  it  provided  that  rates  must 
be  reasonable,  and  then  provided  for  a  commission  to  fix  reasonable  rates." 
The  courage  of  Judge  Lawrence  was  not  therefore  thrown  away ;  it  cost  him 
his  place,  but  it  served  the  people  and  vindicated  the  law. 

In  1890,  the  executive  committee  of  the  Minnesota  Farmers'  Alliance  in 
passing  resolutions  demanding  the  abolition  of  the  Federal  Supreme  Court, 
which  had  recently  held  that  the  State  legislature  had  no  power  to  fix  railroad 
freight  rates,  relieved  their  feelings  by  saying,  "  AVe  call  attention  to  the  fact 
that  the  citizens  of  England,  from  whom  we  have  largely  derived  our  form  of 
government,  would  not  permit  for  one  instant  a  bench  of  judges  to  nullify  an 
Act  of  Parliament.  There  the  people  are  properly  omnipotent.  ...  In  our 
anxiety  to  protect  the  rights  of  property  we  have  created  a  machine  that 
threatens  to  destroy  the  rights  of  man." 

2  There  have  of  course  been  other  instances  in  which  judges  have  been  im- 
peached or  removed ;  but  I  am  here  dealing  only  with  those  in  which  the  ground 
of  complaint  was  the  declaring  a  legislative  act  to  be  invalid. 


CHAP.  XLV  REMEDIES   POR   THEIR   FAULTS  559 

ing  the  law  of  tlie  State,  its  fundamental  law  as  well  as  its 
laws  of  inferior  authority,  just  as  an  English  judge  might  hold 
an  order  made  by  the  Queen  in  Council  to  be  invalid,  because 
in  excess  of  the  powers  granted  by  the  Act  of  Parliament 
under  which  it  was  made.  It  would  be  as  clearly  the  duty  of 
an  English  county  court  judge  so  to  hold  as  of  the  highest 
court  of  appeal.  So  it  is  tlie  duty  of  the  hiimblest  American 
State  judge  to  decide  on  the  constitutionality  of  a  statute. 

So  far  we  have  been  considering  restrictions  imposed  on  the 
competence  of  the  legislature,  or  on  the  methods  of  its  pro- 
cedure. We  now  come  to  the  fourth  and  last  of  the  checks 
which  the  prudence  of  American  States  imposes.  It  is  a  very 
simple,  not  to  say  naive,  one.  It  consists  in  limiting  the  time 
during  which  the  legislature  may  sit.  Formerly  these  bodies 
sat,  like  the  English  Parliament,  so  long  as  they  had  business 
to  do.  The  business  seldom  took  long.  When  it  was  done, 
the  farmers  and  lawyers  naturally  wished  to  go  home,  and 
home  they  went.  But  Avhen  the  class  of  professional  politi- 
cians grew  up,  these  wholesome  tendencies  lost  their  power 
over  a  section  of  the  members.  Politics  was  their  business, 
and  they  had  none  other  to  call  them  back  to  the  domestic 
hearth.^  They  had  even  a  motive  for  prolonging  the  session, 
because  they  prolonged  their  legislative  salary,  which  was 
usually  paid  by  the  day.  Thus  it  became  the  interest  of  the 
tax-payer  to  shorten  the  session.  His  interest,  however,  was 
still  stronger  in  cutting  short  the  jobs  and  improvident  be- 
stowal of  moneys  and  franchises  on  which  he  found  his  repre- 
sentatives employed.  Accordingly  most  States  have  fixed  a 
number  of  days  beyond  which  the  legislature  may  not  sit. 
Many  of  these  fix  it  absolutely ;  but  a  few  prefer  the  method 
of  cutting  off  the  pay  of  their  legislators  after  the  prescribed 
number  of  days  has  expired,  so  that  if  they  do  continue  to 
devote  themselves  still  longer  to  the  work  of  law-making,  their 
virtue  shall  be  its  own  reward.^     Experience  has,  however,  dis- 

1  The  English  Parliament  found  the  tendency  of  members  to  slip  away  so 
strong  that  in  the  sixteenth  century  it  enacted  "  that  no  kniffht  of  the  shire  or 
bursess  do  depart  before  the  end  of  Parliament,"  and  inflicted  on  the  member 
leaving  without  the  permission  of  Mr.  Speaker,  the  penalty  of  losing  "all 
those  sums  of  money  which  he  should  or  ought  to  have  had  for  his  wages." 

2  Thus  the  Constitution  of  Oregon,  for  instance,  gives  its  members  ^2  a  day, 
but  provides  that  they  shall  never  receive  more  than  §120  in  all,  thus  practi- 


660  THE   STATE    GOVERNMENTS  i-akt  ii 

closed  a  danger  in  these  absolutely  limited  sessions.  It  is  that 
of  haste  and  recklessness  in  rushing  bills  through  without  due 
discussion.  Sometimes  it  happens  that  a  bill  introduced  in 
response  to  a  vehement  popular  demand  is  carried  with  a  run 
(so  to  speak),  because  the  time  for  considering  it  cannot  be 
extended,  whereas  longer  consideration  Avould  have  disclosed 
its  dangers.  An  ill-framed  railway  bill  was  thus  lately  lost  in 
the  Iowa  legislature  because  full  discussion  (there  being  no 
time-limit)  brought  out  its  weak  points.  Hence  some  States 
have  largely  extended  their  sessions.  Thus  California  has 
recently  lengthened  the  days  during  which  her  legislators  may 
receive  pay  from  60  to  100 ;  and  Colorado  in  1885  extended 
the  maximum  of  her  session  from  40  to  90  days,  also  raising 
legislative  pay  from  $4  to  f  7  per  diem. 

Many  recent  Constitutions  have  tried  another  and  probably 
a  better  expedient.  They  have  made  sessions  less  frequent. 
At  one  time  every  legislature  met  once  a  year.  Now  in  all 
the  States  but  five  it  is  permitted  to  meet  only  once  in  two 
years. ^  Within  the  last  fourteen  years,  at  least  seven  States 
have  changed  their  annual  sessions  to  biennial.  It  does  not 
appear  that  the  interests  of  the  commonwealths  suffer  by  this 
suspension  of  the  action  of  their  chief  organ  of  government.^ 
On  the  contrary,  they  get  on  so  much  better  without  a  legis- 
lature that  certain  bold  spirits  ask  whether  the  principle  ought 
not  to  be  pushed  farther.     As  Mr.  Butler  says  — 

"  For  a  people  claiming  pre-eminence  in  the  sphere  of  popular  govern- 
ment, it  seems  hardly  creditable  that  in  their  seeming  despair  of  a  cure 
for  the  chronic  evils  of  legislation,  they  should  be  able  to  mitigate  them 
only  by  making  them  intermittent.  Under  the  biennial  system  the  relief 
enjoyed  in  what  are  called  the  '  off-years '  seems  to  have  reconciled  the 
body  politic  of  the  several  States  which  have  adopted  it  to  the  risk  of  an 

cally  limiting  the  session  to  forty  days.  Texas  is  a  little  more  liberal,  for  her 
Constitution  is  content  to  reduce  the  pay  after  sixty  days  from  $5  to  S3  per 
day,  at  which  reduced  rate  members  may  apparently  go  on  as  long  as  they 
please.  All  the  States  which  fix  a  limit  of  time  are  Southeru  or  Western,  except 
Pennsylvania  and  Maryland,  whose  legislatures  certainly  need  every  check 
that  can  be  applied.  The  forty  days'  session  of  Georgia  may  be  extended  by  a 
two-thirds  vote  of  an  absolute  majority  of  each  House. 

1  But  sometimes  the  legislature  by  adjourning  gives  itself  a  second  session. 

-  The  members,  however,  being  usually  new  to  the  work,  are  rawer  and 
positively  more  dangerous  when  their  term  includes  only  one  session  than 
they  are  in  a  second  session  where  there  are  two. 


CHAP.  XLV  REMEDIES   FOR   THEIR   FAULTS  561 

aggravation  of  the  malady  when  the  legislative  year  comes  round  and 
the  old  symptoms  recur. 

"The  secretaries  of  State  (of  the  several  States)  with  whom  I  have 
communicated  concur  in  certifying  that  no  public  inconvenience  is  caused 
by  the  biennial  system ;  and  one  of  them,  of  the  State  of  Nebraska,  in 
answer  to  my  query  if  biennial  sessions  occasion  any  public  incon- 
venience, writes  '  None  whatever.  The  public  interests  would  be  better 
subserved  by  having  legislative  sessions  held  only  once  in  four  years.'  " 

The  Americans  seem  to  reason  thus  :  "  Since  a  legislature  is 
very  far  gone  from  righteousness,  and  of  its  own  nature  in- 
clined to  do  evil,  the  less  chance  it  has  of  doing  evil  the  better. 
If  it  meets,  it  will  pass  bad  laws.  Let  us  therefore  prevent  it 
from  meeting." 

They  are  no  doubt  right  as  practical  men.  They  are  con- 
sistent, as  sons  of  the  Puritans,  in  their  application  of  the 
doctrine  of  original  sin.  But  this  is  a  rather  pitiful  result  for 
self-governing  democracy  to  have  arrived  at. 

"Is  there  not,''  some  one  may  ask,  "a  simpler  remedy? 
Why  all  these  efforts  to  deal  wdth  the  various  symptoms  of  the 
malady,  instead  of  striking  at  the  root  of  the  malady  itself  ? 
Why  not  reform  the  legislatures  by  inducing  good  men  to 
enter  them,  and  keeping  a  more  constantly  vigilant  public 
opinion  fixed  upon  them  ?  "' 

The  answer  to  this  very  pertinent  question  will  be  found  in 
the  chapters  of  Part  III.  which  foUow.  I  will  only  so  far 
anticipate  what  is  there  stated  as  to  observe  that  the  better 
citizens  have  found  it  so  difficult  and  troublesome  to  reform 
the  legislatures  that  they  have  concluded  to  be  content  with 
curing  such  and  so  many  symptoms  as  they  can  find  medicines 
for,  and  waiting  to  see  in  what  new  direction  the  virus  wiU 
work.  "  After  all,"  they  say,  "  the  disease,  though  it  is  pain- 
ful and  vexing,  does  not  endanger  the  life  of  the  patient,  does 
not  even  diminish  his  strength.  The  worst  that  the  legis- 
latures can  do  is  to  waste  some  mone}",  and  try  some  foolish 
experiments  from  which  the  good  sense  of  the  people  will 
presentl}^  withdraw.  Ever}^  one  has  his  crosses  to  bear,  and 
ours  are  comparatively  light."  All  which  is  true  enough,  but 
ignores  two  important  features  in  the  situation,  one.  that  the 
constitutional  organs  of  government  become  constantly  more 
discredited,  the  other  that  the  tremendous  influence  exerted 

VOL.  I  20 


562  THE   STATE   GOVERNMENTS  part  ii 

by  wealth  and  the  misuse  of  public  rights  permitted  to  capital- 
ists, and  especially  to  companies,  have  created  among  the 
masses  of  the  people  ideas  which  may  break  out  in  demands 
for  legislation  of  a  new  and  dangerous  kind. 

The  survey  of  the  State  governments  which  we  have  now 
completed  suggests  several  reflections. 

One  of  these  is  that  the  political  importance  of  the  States 
is  no  longer  what  it  was  in  the  early  days  of  the  Republic. 
Although  the  States  have  grown  enormously  in  wealth  and 
population,  they  have  declined  relatively  to  the  central  gov- 
ernment. The  excellence  of  State  laws  and  the  merits  of  a 
State  administration  make  less  difference  to  the  inhabitants 
than  formerly,  because  the  hand  of  the  National  government 
is  more  frequently  felt.  The  questions  which  the  State  deals 
with,  largely  as  they  influence  the  welfare  of  the  citizen,  do 
not  touch  his  imagination  like  those  which  Congress  handles, 
because  the  latter  determine  the  relations  of  the  Republic  to 
the  rest  of  the  world,  and  affect  all  the  area  that  lies  between 
the  two  oceans.  The  State  set  out  as  an  isolated  and  self- 
sufiicing  commonwealth.  It  is  now  merely  a  part  of  a  far 
grander  whole,  which  seems  to  be  slowly  absorbing  its  func- 
tions and  stunting  its  growth,  as  the  great  tree  stunts  the 
shrubs  over  which  its  spreading  boughs  have  begun  to  cast 
their  shade. 

I  do  not  mean  to  say  that  the  people  have  ceased  to  care  for 
their  States  ;  far  from  it.  They  are  proud  of  their  States, 
even  where  there  may  be  little  to  be  loi'oud  of.  That  passion- 
ate love  of  competition  which  possesses  English-speaking  men, 
makes  them  eager  that  their  State  should  surpass  the  neigh- 
bouring States  in  the  number  of  the  clocks  it  makes,  the 
hogs  it  kills,  the  pumpkins  it  rears,  that  their  particular  star 
should  shine  at  least  as  brightly  as  the  other  forty-three  in 
the  national  flag.  But  if  these  commonwealths  meant  to  their 
citizens  what  they  did  in  the  days  of  the  Revolution,  if  they 
commanded  an  equal  measure  of  their  loyalty,  and  influenced 
as  largely  their  individual  welfare,  the  State  legislatures 
would  not  be  left  to  professionals  or  third-rate  men.  The 
truth  is  that  the  State  has  shrivelled  up.  It  retains  its  old 
legal  powers  over  the  citizens,  its  old  legal  rights  as  against 
the  central  government.     But  it  does  not  interest  its  citizens 


CHAP.  XLV  REMEDIES   FOR   THEIR   FAULTS  563 


as  it  once  did.  Men  do  not  now  say,  like  Ames  in  1782,  that 
their  State  is  their  country.^  And  as  the  central  government 
overshadows  it  in  one  direction,  so  the  great  cities  have  en- 
croached upon  it  in  another.  The  population  of  a  single  city 
is  sometimes  a  fourth  or  a  fifth  part  of  the  whole  population 
of  the  State ;  and  city  questions  interest  this  population  more 
than  State  questions  do  ;  city  officials  have  begun  to  rival  or 
even  to  dwarf  State  officials. 

Observe,  however,  that  while  the  growth  of  the  Union  has 
relatively  dwarfed  the  State,  the  absolute  increase  of  the  State 
in  population  has  changed  the  character  of  the  State  itself. 
In  1790  seven  of  the  thirteen  original  States  had  each  of  them 
less  than  300,000,  only  one  more  than  500,000  inhabitants. 
Now  twenty-seven  have  more  than  1,000,000  each,  and  nine  of 
these  more  than  2,000,000.  We  must  expect  to  find  that,  in 
spite  of  railroads  and  telegraphs,  the  individual  citizens  will 
know  less  of  one  another,  will  have  less  personal  acquaintance 
with  their  leading  men,  and  less  personal  interest  in  the  affairs 
of  the  community  than  in  the  old  days  when  the  State  was  no 
more  populous  than  an  English  county  like  Bedford  or  Somer- 
set. Thus  the  special  advantages  of  local  government  have  to 
a  large  extent  vanished  from  the  American  States  of  to-day. 
They  are  local  bodies  in  the  sense  of  having  no  great  imperial 
interests  to  fire  men's  minds.  They  are  not  local  in  the  sense 
of  giving  their  members  a  familiar  knowledge  and  a  lively  in- 
terest in  the  management  of  their  affairs.  Hamilton  may  have 
been  right  in  thinking  that  the  large  States  ought  to  be  sub- 
divided.2    At  any  rate  it  is  to  this  want  of  direct  local  interest 

1  So  even  in  1811,  Josiah  Quincy  said  in  Congress:  "Sir,  I  confess  it,  the 
first  public  love  of  my  lieart  is  the  Commonwealth  of  Massachusetts.  There 
is  my  fireside :  there  are  the  tombs  of  my  ancestors." 

-  it  is,  however,  also  argued  that  there  are  some  large  States  in  which  the 
mischievous  action  of  the"  multitude  of  a  great  city  is  held  in  check  by  the 
steadier  rural  voters.  If  such  States  had  been  subdivided,  the  subdivision 
which  happened  to  contain  the  great  city  would  lie  at  the  mercy  of  this  multi- 
tude. The  question  has  not  taken  practical  shape,  for  no  State  has  yet  asked 
to  be  divided,  though  there  is  at  present  a  movement  to  divide  Kansas  into 
two  States  by  a  N.  and  S.  line. 

Texas  is  the  only  State  which  possesses  (under  the  statute  admitting  her) 
a  right  to  divide  herself  into  several  States  witliout  obtaining  permission  from 
Congress. 

Hamilton's  reason  seems  to  have  been  a  fear  that  the  States  would  be  too 
strong  for  the  National  government. 


564  THE   STATE   GOVERNMENTS 


on  the  part  of  the  people,  that  some  of  the  faults  of  their 
legislatures  may  be  ascribed. 

The  chief  lesson  which  a  study  of  the  more  vicious  among 
the  State  legislatures  teaches,  is  that  power  does  not  necessa- 
rily bring  responsibility  in  its  train.  I  should  be  ashamed  to 
write  down  so  bald  a  platitude,  were  it  not  one  of  those  plati- 
tudes which  are  constantly  forgotten  or  ignored.  People  who 
know  well  enough  that,  in  private  life,  wealth  or  rank  or  any 
other  kind  of  poAver  is  as  likely  to  mar  a  man  as  to  make  him, 
to  lower  as  to  raise  his  sense  of  duty,  have  nevertheless  con- 
tracted the  habit  of  talking  as  if  human  nature  changed  when 
it  entered  public  life,  as  if  the  iuere  possession  of  public  func- 
tions, whether  of  voting  or  of  legislating,  tended  of  itself  to 
secure  their  proper  exercise.  We  know  that  power  does  not 
purify  men  in  despotic  governments,  but  we  talk  as  if  it  did 
so  in  free  governments.  Every  one  would  of  course  admit,  if 
the  point  were  put  flatly  to  him,  that  power  alone  is  not 
enough,  but  that  there  must  be  added  to  power,  in  the  case  of 
the  voter,  a  direct  interest  in  the  choice  of  good  men,  in  the 
case  of  the  legislator,  responsibility  to  the  voters,  in  the  case 
of  both,  a  measure  of  enlightenment  and  honour.  What  the 
legislatures  of  the  worst  States  show  is  not  merely  the  need 
for  the  existence  of  a  sound  public  opinion,  for  such  a  public 
opinion  exists,  but  the  need  for  methods  by  which  it  can  be 
brought  into  efficient  action  upon  representatives,  who,  if  they 
are  left  to  themselves,  and  are  not  individually  persons  with  a 
sense  of  honour  and  a  character  to  lose,  will  be  at  least  as  bad 
in  public  life  as  they  could  be  in  private.  The  greatness  of 
the  scale  on  which  they  act,  and  of  the  material  interests  they 
control,  will  do  little  to  inspire  them.  New  York  and  Penn- 
sylvania are  by  far  the  largest  and  Avealthiest  States  in  the 
Union.     Their  legislatures  are  confessedly  among  the  worst. 


CHAPTER  XLVI 

STATE    POLITICS 

In  the  last  preceding  chapters  I  have  attempted  to  describe 
first  the  structure  of  the  machinery  of  State  governments,  and 
then  this  machinery  in  motion  as  well  as  at  rest,  —  that  is  to 
say,  the  actual  working  of  the  various  departments  in  their 
relations  to  one  another.  We  may  now  ask.  What  is  the  mo- 
tive power  which  sets  and  keeps  these  wheels  and  pistons 
going  ?     What  is  the  steam  that  drives  the  machine  ? 

The  steam  is  supplied  by  the  political  parties.  In  speaking 
of  the  parties  I  must,  to  some  slight  extent,  anticipate  what 
will  be  more  fully  explained  in  Part  III, :  but  it  seems  worth 
while  to  incur  this  inconvenience  for  the  sake  of  bringing 
together  all  that  refers  specially  to  the  States,  and  of  complet- 
ing the  picture  of  their  political  life.^ 

The  States  evidently  present  some  singular  conditions  for 
the  development  of  a  party  system.  They  are  self-governing 
communities  with  large  legislative  and  administrative  powers, 
existing  inside  a  much  greater  community  of  which  they  are 
for  many  purposes  independent.  They  must  have  parties,  and 
this  community,  the  Federal  Union,  has  also  parties.  What  is 
the  relation  of  the  one  set  of  parties  to  the  other  ? 

There  are  three  kinds  of  relations  possible,  viz.  — 

Each  State  might  have  a  party  of  its  own,  entirely  uncon- 
nected with  the  national  parties,  but  created  by  State  issues  — 
i.e.  advocating  or  opposing  measures  which  fall  within  the 
exclusive  competence  of  the  State. 

Each  State  might  have  parties  which,  while  based  upon  State 
issues,  were  influenced  by  the  national  parties,  and  in  some  sort 
of  affiliation  with  the  latter. 

1-  Many  readers  may  find  it  better  to  skip  tliis  chapter  until  they  have  read 
those  winch  follow  (Chapters  LIII.-LVI.)  upon  the  history,  tenets,  and  pres- 
ent condition  of  the  great  national  parties. 

565 


566  THE   STATE   GOVERNMENTS  part  n 

The  parties  in  each  State  might  be  merely  local  subdivisions 
of  the  national  parties,  the  national  issues  and  organizations 
swallowing  u}),  or  rather  pushing  aside,  the  State  issues  and 
the  organizations  formed  to  deal  with  them. 

The  nature  of  the  State  governments  would  lead  us  to  expect 
to  find  the  first  of  these  relations  existing.  The  sphere  of  the 
State  is  different,  some  few  topics  of  concurrent  jurisdiction 
excepted,  from  that  of  the  National  government.  What  the 
State  can  deal  with,  the  National  government  cannot  touch. 
What  the  National  government  can  deal  with  lies  beyond  the 
province  of  the  State.  The  State  governor  and  legislature  are 
elected  without  relation  to  the  President  and  Congress,  and 
when  elected  have  nothing  to  do  with  those  authorities.  Hence 
a  question  fit  to  be  debated  and  voted  upon  in  Congress  can 
seldom  be  a  question  fit  to  be  also  debated  and  voted  upon  in  a 
State  legislature,  and  the  party  formed  for  advocating  its  pas- 
sage through  Congress  will  have  no  scope  for  similar  action 
within  a  State,  while  on  the  other  hand  a  State  party,  seeking 
to  carry  some  State  law,  will  have  no  motive  for  approaching 
Congress,  which  can  neither  help  it  nor  hurt  it.  The  great 
questions  which  have  divided  the  Union  since  its  foundation, 
and  on  which  national  parties  have  been  based,  have  been  ques- 
tions of  foreign  policy,  of  the  creation  of  a  national  bank,  of 
a  protective  tariff,  of  the  extension  of  slavery,  of  the  recon- 
struction of  the  South  after  the  war.  With  none  of  these  had 
a  State  legislature  any  title  to  deal :  all  lay  within  the  Federal 
S2)here.  So  at  this  moment  the  questions  of  currency  and  tariff 
reform,  which  are  among  the  most  important  questions  before 
the  country,  are  outside  the  province  of  the  State  governments. 
We  might  therefore  expect  that  the  State  parties  would  be  as 
distinct  from  the  national  parties  as  are  the  State  governments 
from  the  Federal. 

The  contrary  has  happened.  The  national  parties  have  en- 
gulfed the  State  parties.  The  latter  have  disappeared  abso- 
lutely as  independent  bodies,  and  survive  merely  as  branches 
of  the  national  parties,  working  each  in  its  own  State  for  the 
tenets  and  purposes  wliich  a  national  party  professes  and  seeks 
to  attain.  So  much  is  this  the  case  that  one  may  say  that  a 
State  party  has  rarely  any  marked  local  colour,  that  it  is  seldom 
and  then  but  slightly  the  result  of  a  compromise  between  State 


CHAP.  XLVi  STATE   POLITICS  567 

issues  and  national  issues,  sucli  as  I  have  indicated  in  suggest- 
ing the  second  form  of  possible  relation.  The  national  issues 
have  thrown  matters  of  State  competence  entirely  into  the 
shade,  and  have  done  so  almost  from  the  foundation  of  the 
Eepublic.  The  local  parties  which  existed  in  1789  in  most  or 
all  of  the  States  were  soon  absorbed  into  the  Federalists  and 
Democratic  Republicans  who  sprang  into  life  after  the  adop- 
tion of  the  Federal  Constitution. 

The  results  of  this  phenomenon  have  been  so  important  that 
we  may  stop  to  examine  its  causes. 

Within  four  years  from  their  origin,  the  strife  of  the  two 
great  national  parties  became  intense  over  the  whole  Union. 
From  1793  till  1815  grave  issues  of  foreign  policy,  complicated 
with  issues  of  domestic  policy,  stirred  men  to  tierce  passion  and 
strenuous  effort.  State  business,  being  more  commonj)lace,  ex- 
citing less  feeling,  awakening  no  interest  outside  State  bounda- 
ries, fell  into  the  background.  The  leaders  who  won  fame  and 
followers  were  national  leaders ;  and  a  leader  came  to  care  for 
his  influence  within  his  State  chiefly  as  a  means  of  gaining 
strength  in  the  wider  national  field.  Even  so  restlessly  active 
and  versatile  a  people  as  the  Americans  cannot  feel  warmly 
about  two  sets  of  diverse  interests  at  the  same  time,  cannot 
create  and  work  simultaneously  two  distinct  and  unconnected 
party  organizations.  The  State,  therefore,  had,  to  use  the 
transatlantic  phrase,  "  to  take  the  back  seat."  Before  1815 
the  process  was  complete ;  the  dividing  lines  between  parties 
in  every  State  were  those  drawn  by  national  questions.  And 
from  1827  down  to  1877  the  renewed  keenness  of  party  war- 
fare kept  these  parties  constantly  on  the  stretch,  and  forced 
them  to  use  all  the  support  they  could  win  in  a  State  for  the 
purposes  of  the  national  struggle. 

There  was  one  way  in  which  predominance  in  a  State  could 
be  so  directly  nsed.  The  Federal  senators  are  chosen  by  the 
State  legislatures.  The  party  therefore  which  gains  a  majority 
in  the  State  legislature  gains  two  seats  in  the  smaller  and  more 
powerful  branch  of  Congress.  As  parties  in  Congress  are  gen- 
erall}^  pretty  equally  balanced,  this  advantage  is  well  worth 
fighting  for,  and  is  a  constant  spur  to  the  efforts  of  national 
politicians  to  carry  the  State  elections  in  a  particular  State. 
Besides,  in  America,  above  all  countries,  nothing  succeeds  like 


568  THE   STATE   GOVERNMENTS 


success ;  and  in  eacli  State  the  party  wliicli  carries  the  State 
elections  is  held  likel}'  to  carry  the  elections  for  the  national 
House  of  Representatives,  and  for  the  President  also. 

Moreover,  there  are  the  offices.  The  Federal  offices  in  each 
State  are  very  numerous.  They  are  in  the  gift  of  whichever 
national  party  happens  to  be  in  power,  i.e.  counts  among  its 
members  the  President  for  the  time  being.  He  bestows  them 
upon  those  who  in  each  State  have  worked  hardest  for  the 
national  party  there.  Thus  the  influence  of  Washington  and 
its  presiding  deities  is  everywhere  felt,  and  even  the  party 
which  is  in  a  minority  in  a  particular  State,  and  therefore  loses 
its  share  of  the  State  offices,  is  cheered  and  fed  by  morsels  of 
patronage  from  the  national  table.  The  national  parties  are  in 
fact  all-pervasive,  and  leave  little  room  for  the  growth  of  any 
other  groupings  or  organizations.  A  purely  State  party,  indif- 
ferent to  national  issues,  would,  if  it  were  started  now,  have  no 
support  from  outside,  would  have  few  posts  to  bestow,  because 
the  State  offices  are  neither  numerous  nor  well  paid,  could  have 
no  pledge  of  permanence  such  as  the  vast  mechanism  of  the 
national  parties  provides,  would  offer  little  prospect  of  aiding 
its  leaders  to  win  wealth  or  fame  in  the  wider  theatre  of  Con- 
gress. 

Accordingly  the  national  parties  have  complete  possession 
of  the  field.  In  every  State  from  INIaine  to  Texas  all  State 
elections  for  the  governorship  and  other  offices  are  fought  on 
their  lines;  all  State  legislatures  are  divided  into  members 
belonging  to  one  or  other  of  them.  Every  trial  of  strength  in 
a  State  election  is  assumed  to  presage  a  similar  result  in  a 
national  election.  Every  State  office  is  deemed  as  fitting  a 
reward  for  services  to  the  national  party  as  for  services  in 
State  contests.  In  fact  the  whole  machinery  is  worked  exactly 
as  if  the  State  were  merely  a  svibdivision  of  the  Union  for  elec- 
toral purposes.  Yet  nearly  all  the  questions  wdiich  come 
before  State  legislatures  have  nothing  whatever  to  do  with  the 
tenets  of  the  national  parties,  while  votes  of  State  legislatures, 
except  in  respect  of  the  choice  of  senators,  can  neither  advance 
nor  retard  the  progress  of  any  cause  which  lies  within  the  com- 
petence of  Congress. 

How  has  this  system  affected  the  working  of  the  State  gov- 
ernments, and  especially  of  their  legislatures  ? 


CHAP.  XLVi  STATE   POLITICS  569 

It  has  prevented  the  growth  within  a  State  of  State  parties 
addressing  themselves  to  the  questions  which  belong  to  its  legis- 
lature, and  really  affect  its  welfare. 

The  natural  source  of  a  party  is  a  common  belief,  a  common 
aim  and  purpose.  For  this  men  league  themselves  together, 
and  agree  to  act  in  concert.  A  State  party  ought  therefore  to 
be  formed  out  of  persons  who  desire  the  State  to  do  something, 
or  not  to  do  it;  to  pass  such  and  such  a  law,  to  grant  money  to 
such  and  such  an  object.  It  is,  however,  formed  with  reference 
to  no  such  aim  or  purpose,  but  to  matters  which  the  State  can- 
not influence.  Hence  a  singular  unreality  in  the  State  parties. 
In  most  of  the  legislatures  as  well  as  through  the  electoral 
districts  they  cohere  very  closely.  But  this  cohesion  is  of  no 
service  or  significance  for  nine-tenths  of  the  questions  that 
come  before  the  legislature  for  its  decision,  seeing  that  such 
questions  are  not  touched  by  the  platform  of  either  party. 
Party,  therefore,  does  not  fulfil  its  legitimate  ends.  It  does  not 
produce  the  co-operation  of  leaders  in  preparing,  of  followers  in 
supporting,  a  measure  or  line  of  policy.  It  does  not  secure  the 
keen  criticism  by  either  side  of  the  measures  or  policy  advo- 
cated by  the  other.  It  is  an  artificial  aggregation  of  persons 
linked  together  for  purposes  unconnected  with  the  work  they 
have  to  do. 

This  state  of  things  may  seem  to  possess  the  advantage  of 
permitting  questions  to  be  considered  on  their  merits,  apart 
from  that  spirit  of  faction  which  in  England,  for  instance,  dis- 
poses the  men  on  one  side  to  reject  a  proposal  of  the  other  side 
on  the  score,  not  of  its  demerits,  but  of  the  quarter  it  proceeds 
from.  Such  an  advantage  would  certainly  exist  if  members 
were  elected  to  the  State  legislatures  irrespective  of  party,  if 
the  practice  was  to  look  out  for  good  men  who  would  manage 
State  business  prudentl}^  and  pass  useful  laws.  This,  however, 
is  not  the  practice.  The  strength  of  the  national  parties  pre- 
vents it.  Every  member  is  elected  as  a  party  man ;  and  the 
experiment  of  legislatures  working  without  parties  has  as  little 
chance  of  being  tried  in  the  several  States  as  in  Congress  itself. 
There  is  yet  another  benefit  which  the  plan  seems  to  promise. 
The  State  legislatures  may  seem  a  narrow  sphere  for  an  enter- 
prising genius,  and  their  work  uninteresting  to  a  superior  mind. 
But  if  they  lead  into  the  larger  field  of  national  politics,  if  dis- 


570  THE    STATE   GOVERNMENTS  part  ii 

tinction  in  them  opens  the  door  to  a  fame  and  power  extending 
over  the  country,  able  men  will  seek  to  enter  and  to  shine  in 
the  legislatures  of  the  States.  This  is  the  same  argument  as 
is  used  by  those  who  defend  the  practice,  now  general  in  Eng- 
land, of  fighting  municipal  and  other  local  elections  on  party 
lines.  Better  men,  it  is  said,  are  glad  to  enter  the  town  coun- 
cils than  could  otherwise  be  induced  to  do  so,  because  in  doing 
so  they  serve  the  party,  and  establish  a  claim  on  it,  they  com- 
mend themselves  to  their  fellow-citizens  as  fit  candidates  for 
Parliament.  The  possible  loss  of  not  getting  a  good  set  of 
town  councillors  irrespective  of  party  lines  is  thought  to  be 
more  than  compensated  by  the  certain  gain  of  men  whose  ambi- 
tion would  overlook  a  town  council,  were  it  not  thus  made  a 
stage  in  their  political  career.  This  case  is  the  more  like  that 
of  America  because  these  English  municipal  bodies  have  rarely 
anything  to  do  with  the  issues  which  divide  the  two  great 
English  parties.  Men  are  elected  to  them  as  Tories  or  Liberals 
whose  Toryism  or  Liberalism  is  utterly  indifferent  so  far  as 
the  business  of  the  council  goes. 

Whether  or  no  this  reasoning  be  sound  as  regards  England, 
I  doubt  if  the  American  legislatures  gain  in  efficiency  by  hav- 
ing only  party  men  in  them,  and  whether  the  elections  would 
be  any  worse  cared  for  if  party  was  a  secondary  idea  in  the 
voters'  minds.  Already  these  elections  are  entirely  in  the 
hands  of  party  managers,  to  whom  intellect  and  knowledge 
do  not  commend  an  aspirant,  any  more  than  does  character. 
Experience  in  a  State  legislature  certainly  gives  a  politician 
good  chances  of  seeing  behind  the  scenes,  and  makes  him 
familiar  with  the  methods  employed  by  professionals.  But  it 
affords  few  opportunities  for  distinction  in  the  higher  walks 
of  public  life,  and  it  is  as  likely  to  lower  as  to  raise  his  apti- 
tude for  them.  However,  a  good  many  men  find  their  way 
into  Congress  through  the  State  legislatures  —  though  it  is  no 
longer  the  rule  that  persons  chosen  Federal  senators  by  those 
bodies  must  have  served  in  them  —  and  perhaps  the  average 
capacity  of  members  is  kept  up  by  the  presence  of  persons  who 
seek  to  use  the  State  legislature  as  a  stepping-stone  to  some- 
thing further.  The  question  is  purely  speculative.  Party  has 
dominated  and  will  dominate  all  State  elections.  Under  exist- 
ing conditions  the  thins;  cannot  be  otherwise. 


CHAP.  XLvi  STATE   POLITICS  571 


It  is,  however,  obviously  impossible  to  treat  as  party  matters 
many  of  the  questions  that  come  before  the  legislatures.    Local 
and  personal  bills,  which,  it  will  be  remembered,  occupy  by  far 
the  larger  part  of  the  time  and  labours  of  these  bodies,  do  not 
fall  within  party  lines  at  all.     The  only  difference  the  party 
system  makes  to  them  is  that  a  party  leader  who  takes  up  such 
a  bill  has  exceptional  facilities  for  putting  it  through,  and  that 
a  district  which  returns  a  member  belonging  to  the  majority 
has  some  advantage  when  trying  to  secure  a  benefit  for  itself. 
It  is  the  same  with  appropriations  of  State  funds  to  any  local 
purpose.     Members  use  their  party  influence  and  party  afiilia- 
tions ;   but  the  advocacy  of  such  schemes  and  opposition  to 
them  have  comparatively  little  to  do  with  party  divisions,  and 
it  constantly  happens   that  men   of  both   parties  are   found 
combining  to  carry  some  project  by  which  they  or  their  con- 
stituents will  gain.     Of  course  the  less  reputable  a  member  is, 
the  more  apt  will  he  be  to  enter  into  "rings"  which  have 
nothing  to  do  with  politics  in  their  proper  sense,  the  more 
ready  to  scheme  with  any  trickster,  to  whichever  party  he 
adheres.     Of  measures  belonging  to  what  may  be  called  gen- 
uine legislation;   i.e.  measures  for  improving  the  general  law 
and   administration  of   the  State,  some   are    so   remote   from 
any  party  issue,  and  so  unlikely  to  enure  to  the  credit  of  either 
party,  that  they  are  considered  on  their  merits.     A  bill,  for 
instance,  for  improving  the  State  lunatic  asylums,  or  forbid- 
ding lotteries,  or  restricting  the   freedom  of   divorce,  would 
have  nothing  either  to  hope  or  to  fear  from  party  action.     It 
would  be  introduced  by  some  member  who  desired  reform  for 
its  own  sake,  and  would  be  passed  if  this  member,  having  con- 
vinced the  more  enlightened   among   his  colleagues   that   it 
would  do  good,  or  his  colleagues  generally  that  the  people 
wished  it,  could  overcome  the  difficulties  which  the  pressure 
of  a  crowd  of  competing  bills   is   sure  to  place  in  its  way. 
Other  public  measures,  however,  may  excite  popular  feeling, 
may  be   demanded   by  one  class  or  section  of  opinion  and 
resisted  by  another.     Bills  dealing  with  the  sale  of   intoxi- 
cants, or  regulating  the  hours  of  labour,  or  attacking  railway 
companies,  or  prohibiting  the  sale  of  oleomargarine  as  butter, 
are  matters  of  such  keen  interest  to  some  one  section  of  the 
population,  that  a  party  will  gain  support  from  many  citizens 


572  THE   STATE   GOVERNMENTS  part  ii 

by  espousing  them,  and  may  possibly  estrange  others.  Hence, 
though  such  bills  have  rarely  any  connection  with  the  tenets 
of  either  party,  it  is  worth  the  while  of  a  party  to  win  votes 
by  throwing  its  weight  for  or  against  them,  according  as  it 
judges  that  there  is  more  to  gain  by  taking  the  one  course  or 
the  other.  In  the  case  of  oleomargarine,  for  instance,  there 
was  clearly  more  to  be  gained  by  supporting  than  by  opposing, 
because  the  farmers,  especially  in  the  agricultural  North- West, 
constitute  a  much  stronger  vote  than  any  persons  who  could 
suffer  by  restricting  the  sale  of  the  substance.  We  should 
accordingly  expect  to  find,  and  observers  did  in  fact  find,  both 
parties  competing  for  the  honour  of  passing  such  a  bill.  There 
was  a  race  between  a  number  of  members,  anxious  to  gain 
credit  for  themselves  and  their  friends.  Intoxicants  open  up  a 
more  difficult  problem.  Strong  as  the  Prohibitionists  and  local 
option  men  are  in  all  the  northern  and  western,  as  well  as  in 
some  of  the  southern  States,  the  Germans,  not  to  speak  of  the 
Irish  and  the  liquor  dealers,  are  in  many  States  also  so  strong, 
and  so  fond  of  their  beer,  that  it  is  a  hazardous  thing  for  a 
party  to  hoist  the  anti-liquor  flag.  Accordingly  both  parties 
are  apt  to  fence  with  this  question.  Speaking  broadly,  there- 
fore, these  questions  of  general  State  legislation  are  not  party 
questions,  though  liable  at  any  moment  to  become  so,  if  one  or 
other  party  takes  them  up. 

Is  there  then  no  such  thing  as  a  real  State  party,  agitating  or 
working  solely  within  State  limits,  and  inscribing  on  its  banner 
a  principle  or  project  which  State  legislation  can  advance  ? 

Such  a  party  does  sometimes  arise.  In  California,  for  in- 
stance, there  has  long  been  strong  feeling  against  the  Chinese, 
and  a  desire  to  exclude  them.  Both  K-epublicans  and  Demo- 
crats were  affected  by  the  feeling,  and  fell  in  with  it.  But 
there  sprang  up  fifteen  years  ago  a  third  party,  which  claimed 
to  be  specially  "  anti-Mongolian,"  while  also  attacking  capital- 
ists and  railways  ;  and  it  lasted  for  some  time,  confusing  the 
politics  of  the  State.  Questions  affecting  the  canals  of  the 
State  became  at  one  time  a  powerful  factor  in  the  parties  of 
New  York.  In  Virginia  the  question  of  repudiating  the  State 
debt  gave  birth  a  few  years  ago  to  a  party  which  called  itself 
the  "Readjusters,"  and  by  the  help  of  negro  votes  carried  the 
State  at  several    elections.     In  some   of   the   North-Western 


CHAP.  XLVi  STATE   POLITICS  573 

States  the  farmers  associated  tlieiiiselves  in  societies  called 
"  Granges,"  purporting  to  be  formed  for  the  promotion  of 
agriculture,  and  created  a  Granger  party,  which  secured  drastic 
legislation  against  the  railroad  companies  and  other  so-called 
monopolists.  The  same  forces  acting  over  a  still  wider  area 
have  lately  produced  the  so-called  Farmers'  Alliance,  which 
figured  so  prominently  in  the  congressional  elections  of  1890, 
and  under  the  name  of  the  People's  I'arty,  in  those  of  1892. 
And  in  most  States  there  now  exists  an  active  Prohibitionist 
party,  which  agitates  for  the  strengthening  and  better  enforce- 
ment of  laws  restricting  or  forbidding  the  sale  of  intoxicants. 
It  deems  itself  also  a  national  party,  since  it  has  an  organiza- 
tion which  covers  a  great  part  of  the  Union.  But  its  opera- 
tions are  far  more  active  in  the  States,  because  the  liquor 
traffic  belongs  to  State  legislation.^  Since,  however,  it  can 
rarely  secure  many  members  in  a  State  legislature,  it  acts 
chiefly  by  influencing  the  existing  parties,  and  frightening 
them  into  pretending  to  meet  its  wishes. 

All  these  groups  or  factions  were  or  are  associated  on  the 
basis  of  some  doctrine  or  practical  proposal  which  they  put 
forward.  But  it  sometimes  also  happens  that,  without  any 
such  basis,  a  party  is  formed  in  a  State  inside  one  of  the 
regular  national  parties ;  or,  in  other  words,  that  the  national 
party  in  the  State  splits  up  into  two  factions,  probably  more 
embittered  against  each  other  than  against  the  other  regular 
party.  Such  State  factions,  for  they  hardly  deserve  to  be 
called  parties,  generally  arise  from,  or  soon  become  coloured 
by,  the  rivalries  of  leaders,  each  of  whom  draws  a  certain 
number  of  politicians  with  him.  Kew  York  is  tlie  State  that 
has  seen  most  of  them  ;  and  in  it  they  have  tended  of  late 
years  to  grow  more  distinctly  personal.  The  Hunkers  and 
Barnburners  who  divided  the  Democratic  party  some  forty 
years  ago,  and  subsequently  passed  into  the  "  Hards  "  and  the 
"  Softs,"  began  in  genuine  differences  of  opinion  about  canal 
management  and  other  State  questions.^    The  "  Stalwart  "  and 

1  Congress  has  of  course  power  to  impose,  and  has  imposed,  an  excise  upon 
liquor,  hut  this  is  far  from  meeting  the  demands  of  the  temperance  party. 

2  The  names  of  these  factions,  the  changes  tliey  pass  through,  and  tlie  way 
in  which  they  immediately  get  involved  with  the  amhitions  and  antipathies  of 
particular  leaders,  recall  the  factions  in  tlie  Italian  cities  of  the  tliirteenth  and 
fourteenth  centuries,  such  as  the  White  and  Black  Guelfs  of  Florence  in  the 
time  of  Dante. 


574  THE    STATE   GOVERNMENTS  part  ii 

"  Half-breed "  sections  of  the  Republican  party  in  the  same 
State,  whose  bitter  feuds  amused  the  country  a  few  years  ago, 
were  mere  factions,  each  attached  to  a  leader,  or  group  of 
leaders,  but  without  distinctive  principles. 

It  will  be  seen  from  this  fact,  as  well  as  from  others  given 
in  the  preceding  chapter,  that  the  dignity  and  magnitude  of 
State  politics  have  declined.  They  have  become  more  pacific 
in  methods,  but  less  serious  and  more  personal  in  their  aims. 
In  old  days  the  State  had  real  political  struggles,  in  which 
men  sometimes  took  up  arms.  There  was  a  rebellion  in  Mas- 
sachusetts in  1786-87,  which  it  Tieeded  some  smart  fighting  to 
put  down,  and  another  in  Ehode  Island  in  1842,  due  to  the 
discontent  of  the  masses  with  the  then  existing  Constitution.^ 
The  battles  of  this  generation  are  fought  at  the  polling-booths, 
though  sometimes  won  in  the  rooms  where  the  votes  are 
counted  by  partisan  ofiicials.  That  heads  are  counted  instead 
of  being  broken  is  no  doubt  an  improvement.  But  these 
struggles  do  not  always  stir  the  blood  of  the  people  as  those 
of  the  old  time  did :  they  seem  to  evoke  less  patriotic  interest 
in  the  State,  less  public  spirit  for  securing  her  good  govern- 
ment. 

This  change  does  not  necessarily  indicate  a  feebler  sense  of 
political  duty.  It  is  due  to  that  shrivelling  up  of  the  State  to 
which  I  referred  in  last  chapter.  A  century  ago  the  State  was 
a  commonwealth  comparable  to  an  Italian  republic  like  Bologna 
or  Siena,  or  one  of  the  German  free  imperial  cities  of  the  mid- 
dle ages,  to  Liibeck,  for  instance,  or  to  j^iirnberg,  which,  though 
it  formed  part  of  the  Empire,  had  a  genuine  and  vigorous 
political  life  of  its  own,  in  which  the  faiths,  hopes,  passions  of 
the  citizens  were  involved.  Nowadays  the  facilities  of  com- 
munication, the  movements  of  trade,  the  unprecedented  diffu- 
sion of  literature,  and,  perhaps  not  least,  the  dominance  of  the 
great  national  parties,  whose  full  tide  swells  all  the  creeks  and 

1  In  these  miniature  civil  wars  there  was  a  tendency  for  the  city  folk  to  be  on 
one  side  and  the  agriculturists  on  the  other,  a  phenomenon  which  was  observed 
long  ago  in  Greece,  where  the  aristocratic  party  lived  in  the  city  and  the  poor 
in  the  fields.  In  the  sixth  century  b.c.  the  oligarchic  poet  Theognis  mourned 
over  the  degradation  of  political  life  which  had  followed  the  intrusion  of  the 
country  churls.  The  hostility  of  the  urban  and  rural  population  sometimes 
recurs  in  Switzerland.  The  country  people  of  the  canton  of  Basil  fought  a 
bloody  battle  some  years  ago  with  the  people  of  the  city,  and  the  little  com- 
monwealth had  to  be  subdivided  into  two,  Basil  City  and  Basil  Country. 


CHAP.  xLvi  STATE   rOLlTICS  575 

inlets  of  a  State  no  less  than  the  mid  channel  of  national  poli- 
tics at  Washington,  have  drawn  the  minds  of  the  masses  as 
well  as  of  the  more  enlightened  citizens  away  from  the  State 
legislatures,  whose  functions  have  come  to  seem  trivial  and 
their  strifes  petty.^ 

In  saying  this  I  do  not  mean  to  witlidraw  or  modify  what 
was  said,  in  an  earlier  chapter,  of  the  greatness  of  an  American 
State,  and  the  attachment  of  its  inhabitants  to  it.  Those  prop- 
ositions are,  I  believe,  true  of  a  State  as  compared  to  any  local 
division  of  any  European  country,  the  cantons  of  Switzerland 
excepted.  I  am  here  speaking  of  a  State  as  compared  with  the 
nation,  and  of  men's  feelings  toAvards  their  State  to-day  as  com- 
pared with  the  feelings  of  a  century  ago.  I  am,  moreover, 
speaking  not  so  much  of  sentimental  loyalty  to  the  State,  con- 
sidered as  a  whole,  for  this  is  still  strong,  but  of  the  practical 
interest  taken  in  its  government.  Even  in  Great  Britain 
many  a  man  is  proud  of  his  city,  of  Edinburgh  say,  or  of  Man- 
chester, who  takes  only  the  slenderest  interest  in  the  manage- 
ment of  its  current  business. 

There  is  indeed  some  resemblance  between  the  attitude  of 
the  inhabitants  of  a  great  English  town  toAvards  their  municipal 
government  and  that  of  the  people  of  a  State  to  their  State 
government.  The  proceedings  of  English  town  councils  are 
little  folloAved  or  regarded  either  by  the  wealthier  or  the  poorer 
residents.  The  humble  voter  does  not  know  or  care  who  is 
mayor.  The  head  of  a  great  mercantile  house  never  thinks  of 
offering  himself  for  such  a  post.  In  London  the  Metropolitan 
Board  of  Works  raised  and  spent  a  vast  revenue  ;  but  its  dis- 
cussions were  commented  on  in  the  newspapers  only  four  or 
five  times  a  year,  and  very  few  persons  of  good  social  standing 
were  to  be  found  among  its  members.  Allowing  for  the  con- 
trast between  the  English  bodies,  with  their  strictly  limited 
powers,  and  the  immense  competence  of  an  American  State 
legislature,  this  English  phenomenon  is  sufficiently  like  those 
of  America  to  be  worth  taking  as  an  illustration. 

1  Similar  feelings  made  the  three  last  surviving  Hanseatic  free  cities  will- 
ingly resign  their  independence  to  become  members  of  the  new  German  Em- 
pire, because  the  sentiment  of  pan-Germanic  patriotism  had  so  overborne  the 
old  fondness  for  local  independence,  that  no  regret  was  felt  in  resigning  part  of 
the  latter  in  order  to  secure  a  share  in  fuller  national  life  of  the  great  German 
State. 


576  THE   STATE   GOVERNMENTS 


We  may  accordingly  say  that  the  average  American  voter, 
belonging  to  the  labouring  or  farming  or  shopkeeping  class, 
troubles  himself  little  about  the  conduct  of  State  business. 
He  votes  the  party  ticket  at  elections  as  a  good  party  man,  and 
is  pleased  Avhen  his  party  wins.  When  a  question  comes  up 
which  interests  him,  like  that  of  canal  management,  or  the 
regulation  of  railway  rates,  or  a  limitation  of  the  hours  of 
labour,  he  is  eager  to  use  his  vote,  and  watches  what  passes  in 
the  legislature.  He  is  sometimes  excited  over  a  contest  for 
the  governorship,  and  if  the  candidate  of  the  other  party  is  a 
stronger  and  more  honest  man,  may  possibly  desert  his  party 
on  that  one  issue.  But  in  ordinary  times  he  follows  the  pro- 
ceedings of  the  legislature  so  little  that  an  American  humour- 
ist, describing  the  initial  stages  of  dotage,  observes  that  the 
poor  old  man  took  to  hling  the  reports  of  the  debates  in  his 
State  legislature.  The  politics  Avhich  the  voter  reads  by  pref- 
erence are  national  politics ;  and  especially  whatever  touches 
the  next  presidential  election.  In  State  contests  that  which 
chiefly  fixes  his  attention  is  the  influence  of  a  State  victory  on 
an  approaching  national  contest. 

The  more  educated  and  thoughtful  citizen,  especially  in  great 
States,  like  Xew  York  and  Pennsjdvauia,  is  apt  to  be  disgusted 
by  the  sordidness  of  many  State  politicians  and  the  pettiness 
of  most.  He  regards  Albany  and  Harrisburg  much  as  he  re- 
gards a  wasps'  nest  in  one  of  the  trees  of  his  suburban  garden. 
The  insects  eat  his  fruit,  and  may  sting  his  children ;  but  it  is 
too  much  trouble  to  set  up  a  ladder  and  try  to  reach  them. 
Some  public-spirited  young  men  have,  liowever,  occasionally 
thrown  themselves  into  the  muddy  whirlpool  of  the  New  York 
legislature,  chiefly  for  the  sake  of  carrying  Acts  for  the  better 
government  of  cities.  When  the  tenacity  of  such  men  proves 
equal  to  their  courage,  they  gain  in  time  the  active  support  of 
those  who  have  hitherto  stood  aloof,  regarding  State  politics 
as  a  squabble  over  offices  and  jobs.  By  the  help  of  the  press 
they  are  sometimes  able  to  carry  measures  such  as  an  im- 
proved Ballot  Act,  or  an  Act  for  checking  expenditure  at  elec- 
tions which  is  not  only  valuable  in  their  own  State  but  sets 
an  example  which  other  States  are  apt  to  follow.  But  the 
prevalence  of  the  rule  that  a  man  can  be  elected  only  in  the 
district  where  he  lives,  renders  it  difficult  permanently  to  main- 


CHAP.  XLVi  STATE   POLITICS  577 

tain  a  reforming  party  in  a  legislature,  so  those  who,  instead 
of  shrugging  their  shoulders  put  them  to  the  wheel,  generally 
prefer  to  carry  their  energies  into  the  field  of  national  politics, 
thinking  that  larger  and  swifter  results  are  to  be  obtained 
there,  because  victories  achieved  in  and  through  the  National 
government  have  an  immediate  moral  influence  upon  the  coun- 
try at  large. 

A  European  observer,  sympathetic  with  the  aims  of  the 
reformers,  is  inclined  to  think  that  the  battle  for  honest  gov- 
ernment ought  to  be  fought  everywhere,  in  State  legislatures 
and  city  councils  as  well  as  in  the  national  elections  and  in 
the  press,  and  is  at  first  surprised  that  so  much  effoxt  should 
be  needed  to  secure  what  all  good  citizens,  to  whichever  party 
they  belong,  might  be  expected  to  work  for.  But  he  would  be 
indeed  a  self-confident  European  who  should  fancy  he  had 
discovered  anything  which  had  not  already  occurred  to  his 
shrewd  American  friends ;  and  the  longer  such  an  observer 
studies  the  problem,  the  better  does  he  learn  to  appreciate  the 
difficulties  which  the  system  of  party  organization,  which  I 
must  presently  proceed  to  describe,  throws  in  the  way  of  all 
reforming  efforts.. 

VOL.  I  2  p 


CHAPTER  XL VII 

THE    TERKITOKIES 

Of  the  3,501,404  square  miles  whicli  constitute  the  area  of 
the  United  States,  2,582,535  are  included  within  the  bounds 
of  the  forty-four  States  whose  government  has  been  described 
in  the  last  preceding  chapters.  The  918,8G9  square  miles 
which  remain  fall  into  the  three  following  divisions :  — 

Four  organized  Territories,  viz.  :  —  Sq.  Miles. 

Utali,  Arizona,  New  Mexico,  Oklalioma 359,600 

Two  iinorganizecl  Territories,  viz.  :  — 

Alaska 531,409 

Indian  Territory,  west  of  Arkansas 31,400 

The  Federal  District  of  Columbia        ......  70 

Of  these  the  three  latter  may  be  dismissed  in  a  word  or  two. 
The  District  of  Columbia  is  a  piece  of  land  set  apart  to  con- 
tain the  city  of  Washington,  which  is  the  seat  of  the  Federal 
government.  It  is  governed  by  three  commissioners  appointed 
by  the  President,  and  has  no  local  legislature  nor  municipal 
government,  the  only  legislative  authority  being  Congress. 

Alaska  (population  in  1890,  31,795,  of  whom  4303  were 
whites  and  23,274  Indians)  and  the  Indian  Territory  are  also 
under  the  direct  authority  of  officers  appointed  by  the  Presi- 
dent and  of  laws  passed  by  Congress.  Both  are  chiefly  inhab- 
ited by  Indian  tribes,  some  of  which,  however,  in  the  Indian 
Territory,  and  particularly  the  Cherokees,  have  made  consid- 
erable progress  in  civilization.^  Neither  region  is  likely  for  a 
long  time  to  come  to  receive  regular  political  institutions. 

1  There  are  five  civilized  tribes  in  this  territory,  Cherokees,  Choctaws, 

Chickasaws,  Creeks,  and  Seminoles.      "Each  tril)e  manages  its  own  affairs 

under  a  constitntion  modelled  upon  that  of  the  United  States.    Eacli  has  a 

common  school  system,  including  schools  for  advanced  instruction,  all  sup- 

578 


CHAP.  XLvii  THE   TEREITORIES  579 

Until  1889,  the  organized  Territories,  eight  in  number, 
formed  a  broad  belt  of  country  extending  from  Canada  on  the 
north  to  Mexico  on  the  south,  and  separating  the  States  of 
the  Mississippi  valley  from  those  of  the  Tacific  slope.  In  that 
year  Congress  passed  Acts  under  which  three  of  them,  Dakota 
(which  divided  itself  into  ISTorth  Dakota  and  South  Dakota), 
Montana,  and  Washington  became  entitled  to  be  admitted  as 
States ;  while  in  1890  two  others  (Idaho  and  Wyoming)  were 
similarly  permitted  to  become  States.  These  have  now  (1892) 
enacted  Constitutions  and  thereby  organized  themselves  as 
States.  They  are  the  six  States  of  ISTorth  Dakota,  South 
Dakota,  Montana,  Washington,  Idaho,  and  Wyoming.  To  the 
three  remaining  Territories  one  has  been  added  by  the  carving 
out  of  Oklahoma,  in  1890,  from  the  Indian  Territory.  These 
four  require  some  description,  because  they  present  an  inter- 
esting form  of  autonomy  or  local  self-government,  differing 
from  that  which  exists  in  the  several  States,  and  in  some 
points  more  akin  to  that  of  the  self-governing  colonies  of 
Great  Britain.  This  form  has  in  each  Territory  been  created 
by  Federal  statutes,  beginning  with  the  great  Ordinance  for 
the  Government  of  the  Territory  of  the  United  States  north- 
west of  the  Elver  Ohio,  passed  by  the  Congress  of  tlie  Confed- 
eration in  1787.  Since  that  year  many  Territories  have  been 
organized,  by  different  statutes  and  on  different  plans,  out  of 
the  western  dominions  of  the  United  States,  under  the  gen- 
eral power  conferred  upon  Congress  by  the  Federal  Constitu- 
tion (Art.  iv.  §  3)  :  and  all  but  the  above-mentioned  four  have 
now  become  States.  At  first  local  legislative  power  was 
vested  in  the  Governor  and  the  judges ;  it  is  now  exercised 
by  an  elective  legislature.  The  present  organization  of  the 
four  that  remain  is  in  most  respects  identical ;  and  in  describ- 
ing it  I  shall  ignore  minor  differences. 

The  fundamental  law  of  every  Territory,  as  of  every  State, 
is  the  Federal  Constitution;  but  whereas  every  State  has  also 
its  own  popularly  enacted  State  Constitution,  the  Territories 

ported  by  the  Indians  themselves.  The  agent  of  the  National  Indian  Defence 
Association  says  that  there  is  not  in  the  Cherokee  Nation  a  single  Indian  of 
either  sex  over  fifteen  years  of  age  who  cannot  read  or  write."  —  Report  of  (he 
U.  S.  Commissioner  of  Education,  1886.  The  census  of  1890  gives  tlie  total  num- 
bers of  these  tribes  at  6fi,28!),  of  whom  52,0(i5  are  pure  Indians.  The  total  num- 
ber of  Indians  in  the  United  States  (excluding  Alaska)  is  returned  at  249,273. 


580  THE   STATE   GOVERNMENTS  part  ii 

are  not  regulated  by  any  similar  instruments,  which  for  them 
are  replaced  by  the  Federal  statutes  establishing  their  govern- 
ment and  prescribing  its  form.  However,  some  Territories 
have  created  a  sort  of  rudimentary  constitution  by  enacting  a 
Bill  of  Rights.^ 

In  every  Territory,  as  in  every  State,  the  executive,  legisla- 
tive, and  judicial  departments  are  kept  distinct.  The  Execu- 
tive consists  of  a  governor  appointed  for  four  years  by  the 
President  of  the  United  States,  with  the  consent  of  the  Sen- 
ate, and  removable  by  the  President,  together  with  a  secre- 
tary, treasurer,  auditor,  and  usually  also  a  superintendent  of 
public  instruction,  and  a  librarian.  The  governor  commands 
the  militia,  and  has  a  veto  upon  the  acts  of  the  legislature, 
which,  however,  may  (except  in  Utah  and  Arizona)  be  over- 
ridden by  a  two-thirds  majority  in  each  house.  He  is  respon- 
sible to  the  Federal  government,  and  reports  yearly  to  the 
President  on  the  condition  of  the  Territory,  often  making  his 
report  a  sort  of  prospectus  in  which  the  advantages  which  his 
dominions  offer  to  intending  immigrants  are  fondly  set  forth. 
He  also  sends  a  message  to  the  legislature  at  the  beginning  of 
each  session.  Important  as  the  post  of  Governor  is,  it  is  often 
bestowed  as  a  mere  piece  of  party  patronage,  with  no  great 
regard  to  the  fitness  of  the  appointee. 

The  Legislature  is  composed  of  two  Houses,  a  Council  of 
twelve  (in  Oklahoma  thirteen)  persons,  and  a  House  of  Repre- 
sentatives of  twenty-four  (in  Oklahoma  twenty-six)  persons, 
elected  by  districts.  Each  is  elected  by  the  voters  of  the  Ter- 
ritory for  two  years,  and  sits  only  once  in  that  period.  The 
session  is  limited  (by  Federal  statutes)  to  sixty  days,  and 
the  salary  of  a  member  is  $4  per  day.  The  Houses  work 
much  like  those  in  the  States,  doing  the  bulk  of  their  business 
by  standing  committees,  and  frequently  suspending  their  rules 
to  run  measures  through  with  little  or  no  debate.  The  electo- 
ral franchise  is  left  to  be  fixed  by  Territorial  statute,  but  Fed- 
eral statutes  prescribe  that  every  member  shall  be  resident  in 
the  district  he  represents.  The  sphere  of  legislation  allowed 
to  the  legislature  is  wide,  indeed  practically  as  wide  as  that 

i  Arizona,  in  iirovidins  tliat  her  Bill  of  Rights  shall  be  changeable  only  by 
the  vote  of  a  majority  of  all  the  members  elected  to  the  Territorial  legislature 
gives  it  a  species  of  rigidity. 


CHAP.  XLVii  THE  TERRITORIES  581 


enjoyed  by  the  legislature  of  a  State,  but  subject  to  certain 
Federal  restrictions.^  It  is  subject  also  to  the  still  more 
important  right  of  Congress  to  annul  or  modify  by  its  own 
statutes  any  Territorial  act.  In  some  Territories  every  act 
was  directed  to  be  submitted  to  Congress  for  its  approval,  and, 
if  disapproved,  to  be  of  no  effect ;  in  others  submission  has 
not  been  required.  But  in  all  Congress  may  exercise  without 
stint  its  power  to  override  the  statutes  passed  by  a  Territorial 
legislature,  as  the  British  Parliament  may  override  those  of  a 
self-governing  colony.  This  power  is  not  largely  or  often  exer- 
cised. The  most  remarkable  instance  has  been  furnished  by 
Utah,  where  congressional  legislation  has  had  a  hard  fight  in 
breaking  down  polygamy,  finding  it  necessary  even  to  impose 
a  test  oath  upon  voters. 

The  Judiciary  consists  of  three  or  more  judges  of  a  Supreme 
Court,  appointed  for  four  years  by  the  President,  with  the  con- 
sent of  the  Senate  (salary  ^3000),  together  with  a  U.  S.  dis- 
trict attorney  and  a  U.  S.  marshal.  The  law  they  administer 
is  partly  Federal,  all  Federal  statutes  being  construed  to  take 
effect,  where  properly  applicable,  in  the  Territories,  partly 
local,  created  in  each  Territory  by  its  own  statutes ;  and  ap- 
peals, where  the  sum  in  dispute  is  above  a  certain  value,  go  to 
the  Supreme  Federal  Court.  Although  these  courts  are  created 
by  Congress  in  pursuance  of  its  general  sovereignty  —  they  do 
not  fall  within  the  provisions  of  the  Constitution  for  a  Federal 
judiciary  —  the  Territorial  legislature  is  allowed  to  regulate 
their  practice  and  procedure.  The  expenses  of  Territorial  gov- 
ernments are  borne  by  the  Federal  treasury. 

The  Territories  send  neither  senators  nor  representatives  to 
Congress,  nor  do  they  take  part  in  presidential  elections.     The 

1  Revised  Statutes  of  U.  S.  of  1878,  §  1851.  — "The  legislative  power  of 
every  Territory  shall  extend  to  all  rightful  subjects  of  legislation  not  incon- 
sistent with  the  Constitution  and  laws  of  the  United  States.  But  no  law  shall 
be  passed  interfering  with  the  primary  disposal  of  the  soil ;  no  tax  shall  be 
imposed  on  the  property  of  the  United  States,  nor  shall  the  lands  or  other 
property  of  non-residents  be  taxed  higher  than  the  lands  or  other  property  of 
residents." 

§  1889. —  "The  legislative  assemblies  of  the  several  Territories  shall  not 
grant  private  charters  or  especial  privileges,  but  they  may,  by  general  incor- 
poration acts,  permit  persons  to  associate  themselves  together"  for  various 
industrial  and  benevolent  purposes  specitied.  Other  restrictions  have  been 
imposed  by  subsequent  statutes.    See  especially  Acts  of  188(),  chap.  818,  §  5. 


582  THE   STATE   GOVERNMENTS  part  ii 

House  of  Eepresentatives,  under  a  statute,  admits  a  delegate 
from  eacli  of  them  to  sit  and  speak,  but  of  course  not  to  vote, 
because  the  right  of  voting  in  Congress  depends  on  the  Federal 
Constitution.  The  position  of  a  citizen  in  a  Territory  is  there- 
fore a  peculiar  one.  What  may  be  called  his  private  or  passive 
citizenship  is  complete  :  he  has  all  the  immunities  and  benefits ' 
which  any  other  American  citizen  enjoys.  But  the  public  or 
active  side  is  wanting,  so  far  as  the  National  government  is 
concerned,  although  complete  for  local  purposes.^  He  is  in  the 
position  of  an  Australian  subject  of  the  British  Crown,  who 
has  full  British  citizenship  as  respects  private  civil  rights, 
and  a  share  in  the  government  of  his  own  colony,  but  does  not 
participate  in  the  government  of  the  British  empire  at  large, 
although  personally  eligible  for  any  political  office  in  the 
United  Kingdom  or  any  other  part  of  the  empire.  It  may 
seem  inconsistent  with  principle  that  citizens  should  be  taxed 
by  a  government  in  Avhose  legislature  they  are  not  represented ; 
but  the  practical  objections  to  giving  the  full  rights  of  States 
to  these  comparatively  rude  communities  outweigh  any  such 
theoretical  difficulties.  It  must  moreover  be  remembered  that 
a  Territory,  which  may  be  called  an  inchoate  or  rudimentary 
State,  looks  forward  to  become  a  complete  State.  When  its 
population  becomes  equal  to  that  of  an  average  congressional 
district,  its  claim  to  be  admitted  as  a  State  is  strong,  and  in 
the  absence  of  specific  objections  will  be  granted.  Congress, 
however,  has  absolute  discretion  in  the  matter,  and  often  uses 
its  discretion  under  the  influence  of  partisan  motives.  Nevada 
was  admitted  to  be  a  State  when  its  population  was  only 
about  20,000,  mainly  for  the  sake  of  getting  its  vote  for  the 
thirteenth  Constitutional  amendment.  It  subsequently  rose  to 
G2,266,  but  has  now  declined  to  45,761.  Utah  and  New  Mex- 
ico, the  former  with  207,905,  the  latter  with  153,593  inhabi- 
tants, at  the  last  census  (1890),  have  been  refused  admission, 
the  population  of  the  latter  being  largely  of  Mexican  blood, 

1  The  Romans  drew  a  somewliat  similar  distinction  between  the  private 
rights  of  citizenship  and  the  public  rights,  the  latter  including  the  suffrage  and 
eligibility  to  ofHce,  lint  with  them  the  distinction  attached  to  the  person ;  in 
the  United  States  and  the  British  empire  it  is  an  affair  of  residence,  and  affects 
the  suffrage  only,  not  competence  to  fill  an  office.  In  the  British  general  elec- 
tion of  1892  a  distinguished  Canadian  statesman  and  a  Parsi  gentleman  from 
Bombay  were  elected  to  the  House  of  Commons. 


CHAP.  XLvii  THE   TERRITORIES  583 

while  tlie  former  is  deemed,  on  account  of  the  strength  and 
peculiar  institutions  of  the  Mormon  Church,  not  fit  for  that 
emancipation  from  the  tutelage  of  Congress  which  its  erection 
into  a  State  would  confer.^  When  Congress  resolves  to  turn 
a  Territory  into  a  State,  it  either  (as  happened  in  the  cases  of 
Idaho  and  Wyoming)  passes  an  act  accepting  and  ratifying 
a  constitution  already  made  for  themselves  by  the  people,  and 
forthwith  admitting  the  community  as  a  State,  or  else  passes 
what  is  called  an  Enabling  Act,  under  which  the  inhabitants 
elect  a  Constitutional  Convention,  empowered  to  frame  a  draft 
constitution.  When  this  constitution  has  been  submitted  to 
and  accepted  by  the  voters  of  the  Territory,  the  act  of  Congress 
takes  effect :  the  Territory  is  transformed  into  a  State,  and 
proceeds  to  send  its  senators  and  representatives  to  Congress 
in  the  usual  way.  The  enabling  act  may  prescribe  conditions 
to  be  fulfilled  by  the  State  constitution,  biit  has  not  usually 
attempted  to  narrow  the  right  which  the  citizens  of  the  newly- 
formed  State  will  enjoy  of  subsequently  modifying  that  instru- 
ment in  any  way  not  inconsistent  with  the  provisions  of  the 
Federal  Constitution.  However,  in  the  case  of  the  Dakotas, 
Montana,  Washington,  Idaho,  and  Wyoming,  the  enabling  act 
required  the  conventions  to  make  "  by  ordinance  irrevocable 
without  the  consent  of  the  United  States  and  the  people  of  the 
said  States  "  certain  provisions,  including  one  for  perfect  relig- 
iovis  toleration  and  another  for  the  maintenance  of  public 
schools  free  from  sectarian  control.  This  the  six  States  have 
done  accordingly.  But  whether  this  requirement  of  the  con- 
sent of  Congress  would  be  held  binding  if  the  people  of  the 
State  should  hereafter  repeal  the  ordinance,  quaere. 

The  arrangements  above  described  seem  to  work  well.  Self- 
government  is  practically  enjoyed  by  the  Territories,  despite 
the  supreme  authority  of  Congress,  just  as  it  is  enjoyed  by 
Canada  and  the  Australasian  colonies  of  Great  Britain  despite 
the  legal  right  of  the  British  Parliament  to  legislate  for  every 
part  of  the  Queen's  dominions.  The  want  of  a  voice  in  Con- 
gress and  in  presidential  elections,  and  the  fact  that  the  gov- 
ernor is  set  over  them  by  an  external  power,  are  not  felt  to  be 

1  However,  the  House  of  Representatives  passed  in  1892  a  bill  for  the  admis- 
sion of  New  Mexico  as  well  as  of  Arizona ;  and  it  seems  probable  that  both 
Territories  may  shortly  receive  Statehood. 


684  THE   STATE   GOVERNMENTS  part  ii 

practical  grievances,  partly  of  course  because  tliese  young  com- 
munities are  too  small  and  too  much  absorbed  in  the  work  of 
developing  their  natural  resources  to  be  keenly  interested  in 
national  politics.  Their  local  political  life  much  resembles 
that  of  the  newer  Western  States.  Both  Democrats  and 
Republicans  have  their  regular  party  organizations,  but  the 
business  of  a  Territorial  legislature  gives  little  opportunity  for 
any  real  political  controversies,  though  abundant  opportunities 
for  local  jobbing. 

Before  we  pass  away  from  the  Territories,  it  may  be  proper 
to  say  a  few  words  regarding  the  character  and  probable 
future  as  well  of  those  which  lately  passed  into  States  as  of 
the  four  which  remain,  and  out  of  which  several  new  States 
will  ultimately  be  created. 

The  largest,  the  most  populous,  and  in  every  way  the  most 
advanced  was  Dakota  (now  the  two  States  of  North  Dakota 
and  South  Dakota)  which  lies  west  of  Minnesota,  and  south 
of  the  Canadian  province  of  Manitoba.  Its  area  is  147,700 
square  miles,  greater  than  that  of  Prussia,  and  much  greater 
than  that  of  the  United  Kingdom  (120,500  square  miles).  Its 
eastern  and  southern  parts  are  becoming  filled,  though  less 
rapidly  now  than  was  the  case  some  years  back,  by  an  intelli- 
gent farming  population,  largely  Scandinavian  in  blood.  Pos- 
sessing a  vast  area  of  undulating  prairie  land,  well  fitted  for 
wheat  crops,  and  at  least  the  eastern  part  of  which  receives 
enough  rain  to  make  tillage  easy  without  irrigation,  the  two 
Dakotas  are  evidently  destined  to  be  among  the  wealthiest 
and  most  powerful  commonwealths  in  the  Union. 

Montana  has  an  enormous  area  (145,310  square  miles),  but 
much  of  it  consists  of  bare  mountains  or  thin  and  scarcely 
profitable  forest.  There  are,  however,  so  many  rich  valleys 
and  such  an  abundance  of  ranching  land,  not  to  speak  of  the 
valuable  mines,  that  the  still  scanty  population  will  soon  be 
large  in  some  districts.  In  others,  however,  it  must  long 
remain  so  sparse  that  the  policy  of  admitting  this  vast  region, 
in  its  present  condition,  to  the  full  rights  of  a  State  may  seem 
open  to  question. 

Washington,  situated  on  tlie  shores  of  the  Pacific  between 
Oregon  and  British  Columbia,  had  a  stronger  claim  than 
Montana,  and   is  fully  fit  for  the   rank  of   a  self-governing 


CHAP.  XLVii  THE   TEllKITUKlES  585 

State.  That  part  of  it  which  lies  west  of  the  Cascade  Range 
has  a  moist  and  equable  climate,  resembling  the  climate  of 
western  England,  though  somewhat  less  variable.  Many  of 
the  familiar  genera  and  even  species  of  British  plants  reappear 
on  its  hillsides.  The  forests  are  by  far  the  finest  which  the 
United  States  possess,  and  will,  though  they  are  being  sadly 
squandered,  remain  a  source  of  wealth  for  a  century  or  more 
to  come.  I  have  travelled  through  many  miles  of  woodland 
where  nearly  every  tree  was  over  250  feet  high.  The  eastern 
half  of  the  State,  lying  on  the  inland  side  of  the  mountains,  is 
very  much  drier,  and  with  greater  extremes  of  heat  and  cold ; 
but  it  is  in  parts  extremely  fertile.  Washington,  which  had 
in  1870  a  population  of  only  23,955  had,  in  1890,  349,390  in- 
habitants. 

The  States  of  Wyoming  and  Idaho,  which  lie  to  the  S.  and 
S.  W.  of  Montana  and  are  traversed  by  a  number  of  lofty  ranges 
belonging  to  the  Kocky  Mountain  system,  have  comparatively 
little  agricultural  land,  and  even  their  pastoral  tracts  suffer 
from  the  extreme  dryness  of  the  climate.  There  are,  however, 
rich  mineral  deposits,  especially  in  Idaho ;  there  are  in  some 
places  extensive  forests,  though  of  trees  inferior  in  size  to 
those  of  the  Pacific  coast.  The  population  of  these  States  will 
therefore  continue  to  increase  rapidly,  especially  when  the 
fertile  lands  of  Dakota  have  been  filled  up.^  But  that  popula- 
tion is  likely  to  remain  for  some  time  to  come  much  less 
dense,  and  less  stable  in  its  character,  than  the  Dakotan.  It 
may  therefore  be  doubted  whether  their  admission,  which  was 
mainly  due  to  party  political  motives,  was  a  prudent  act. 

The  region  which  now  constitutes  the  Territory  of  Utah 
was,  before  the  arrival  of  the  Mormons  in  1848,  a  desert,  and 
indeed  an  arid  desert,  whose  lower  grounds  were  covered  with 
that  growth  of  alkaline  plants  which  the  Americans  call  sage- 
brush.2  rpj^g  patient  labour  of  the  Saints,  directed,  at  least 
during  the  pontificate  of  Brigham  Young,  by  an  able  and 
vigilant  autocracy,  has  transformed  many  of  the  tracts  lying 
along  the  banks  of  streams  into  fertile  grain,  vegetable,  and 

1  In  1890  Idaho  had  84,229  inhabitants ;  Wyorain^,  fi0,589. 

2  Tlie  so-called  sase-brush  plants  are  not  species  of  what  in  England  is  called 
sage  (Salvia)  bnt  mostly  belong  to  the  order  ("onipositae,  which  is  nnusnally 
strong  in  America.  Something  like  a  third  of  the  total  phaenogamous  genera 
of  the  United  States  have  been  estimated  to  belong  to  it. 


586  THE   STATE   GOVERNMENTS  part  ii 

fruit  farms.  The  water  Avliich  descends  from  the  mountains 
is  turned  over  the  level  ground;  the  alkaline  substances  are 
soon  washed  out  of  the  soil,  and  nothing  more  than  irrigation 
is  needed  to  produce  excellent  croi)s.  After  this  process  had 
advanced  some  way  the  discovery  of  rich  silver  mines  drew  in 
a  swarm  of  Gentile  colonists,  and  the  non-Mormon  population 
of  some  districts  is  now  considerable.  As  Utah  had  in  1890, 
207,000  inhabitants,  it  would  long  ago  have  been  admitted  as 
a  State  but  for  the  desire  of  Congress  to  retain  complete 
legislative  control,  and  thereby  to  stamp  out  polygamy.  This 
object  seems  at  last  likely  to  be  attained,  as  at  the  latest  Terri- 
torial election  the  Gentiles  proved  to  be  in  a  majority ;  and 
although  much  of  the  Territory  is  likely  to  remain  barren  and 
uninhabited,  enough  is  fit  for  tillage  and  for  dairy-farming  to 
give  it  a  prospect  of  supporting  a  large  settled  population. 

Oklahoma  (Ind.  "beautiful  lands")  is  the  name  of  a  new 
Territory  which  a  statute  of  1890  created  out  of  the  central 
and  almost  unoccupied  parts  of  the  Indian  Territory,  lying 
west  of  Arkansas  and  south  of  Kansas.  Its  area  is  compara- 
tively small  (39,030  square  miles)  and  part  of  this  is  claimed 
by  Texas ;  while  part  still  belongs  to  the  Indian  nations.  It 
is  a  rolling  prairie  country,  the  eastern  part  of  it  fit  for  agri- 
culture without  irrigation,  and  producing  cotton  and  tobacco  as 
well  as  wheat  and  maize.  The  soil,  though  sandy  in  parts,  is 
generally  fertile.  Coal  exists,  and  probably  zinc,  and  lead  also. 
The  population,  which  in  1890,  soon  after  the  region  was 
opened,  was  61,834,  and  is  now  (Augvist  1892)  estimated  by  the 
Territorial  Secretary  at  about  100,000,  consists  of  recent  immi- 
grants, the  northern  countries  having  been  occuj)ied  by  men 
from  Kansas,  the  southern  by  Texans,  both  of  whom  flooded  it 
in  a  sudden  wave,  seeking  to  seize  the  land  when  it  was  first 
thrown  open  to  settlement.  In  1891  and  1892,  there  is  said  to 
have  been  a  considerable  influx  of  negroes,  apparently  with 
the  idea  of  establishing  an  influence  strong  enough  to  enable 
them  to  hold  their  own  against  the  whites  better  than  they 
have  been  able  to  do  in  the  Southern  States.  There  are  now 
between  fifteen  and  twenty  thousand  persons  of  colour,  and 
ten  thousand  Indians,  nearly  all  settled  as  landholding  citizens. 

New  Mexico,  with  an  area  larger  than  tlie  United  Kingdom 
(population  in  1890,  153,000),  is  still  largely  peopled  by  Indo- 


CHAP.  XLVii  THE   TERRITORIES  587 


Spanish  Mexicans/  who  speak  Spanish,  and  are  obviously  ill 
fitted  for  the  self-government  which  organization  as  a  State 
implies.  Water  is  too  scarce  and  the  soil  too  hilly  to  make 
agriculture  generally  available.  The  same  remark  applies  to 
Arizona  (population,  59,000),  the  sides  of  whose  splendid 
mountain  groups  are  barren,  and  most  of  wdiose  plains  support 
only  a  scanty  vegetation.  Both  Territories  are  rich  in  min- 
erals, but  a  mining  population  is  not  only  apt  to  be  disorderly, 
but  is  fluctuating,  moving  from  camp  to  camp  as  richer  deposits 
are  discovered  or  old  veins  worked  out.  It  seems  doubtful, 
therefore,  whether  either  of  tliese  mining  and  ranching  Terri- 
tories is  likely  to  be  formed  into  a  State  at  any  presently 
assignable  date.  The  time  must  come  when  the  increase  of 
population  in  the  region  immediately  to  the  east  of  the  Eocky 
Mountains  will  turn  a  fuller  stream  of  immigration  into  these 
less  promising  regions,  and  bring  under  irrigation  culture  large 
tracts  which  are  now  not  worth  working.  Xo  one  can  yet  say 
when  that  time  will  arrive.  Till  it  arrives  it  will  be  for  the 
benefit  of  these  Territories  themselves  that  they  should  remain 
content  with  that  limited  and  qualified  form  of  self-govern- 
ment which  they  now  enjoy,  and  under  which  they  can  practi- 
cally legislate  for  their  own  peculiar  conditions  with  sufficient 
freedom. 

Europeans  may,  however,  ask  why  the  theory  of  American 
democracy,  which  deems  all  citizens  entitled  to  a  voice  in  the 
National  government,  should  not  at  least  so  far  prevail  as  to 
give  the  inhabitants  of  the  Territories  the  right  of  suffrage  in 
congressional  and  presidential  elections.  "Does  not,"  he  may 
say,  "the  fact  that  each  sends  a  delegate,  though  a  voteless 
delegate,  to  the  House  of  Representatives  and  two  delegates 
to  the  National  Nominating  Conventions  (to  be  hereafter 
described)  imply  that  the  unenfranchised  position  of  the  resi- 
dents in  a  Territory  is  felt  to  be  indefensible  in  theory  ?  " 

This  is  true.  If  it  were  possible  under  the  Federal  Consti- 
tution to  admit  Territorial  residents  to  active  Federal  citizen- 
ship—  that  is  to  say,  to  Federal  suffrage  —  admitted  they 
would  be.     But  the  Union  is  a  union  of  States.     It  knows  no 

1  There  are  also  28,799  Indians,  some  of  them  settled  and  comparatively- 
civilized.  Of  these,  8,278  inhabit  the  so-called  "  pueblos,"  so  interesting  to  the 
ethnolosfist. 


588  THE   STATE   GOVEKNMENTS  part  n 

representatives  in  Congress,  no  electors  for  the  Presidency, 
except  those  chosen  in  States  by  State  voters.  The  only  means 
of  granting  Federal  suffrage  to  citizens  in  a  Territory  would  be 
to  turn  the  Territory  into  a  State.  This  would  confer  a  power 
of  self-government,  guaranteed  by  the  Federal  Constitution, 
for  which  the  Territory  might  be  still  unfit.  But  it  would  do 
still  more.  It  would  entitle  this  possibly  small  and  rude  com- 
mimity  to  send  two  senators  to  the  Federal  Senate  who  would 
there  have  as  much  weight  as  the  two  senators  from  New  York 
with  its  six  millions  of  people.  This  is  a  result  from  which 
Congress  may  fairly  recoil.  And  a  practical  illustration  of  the 
evils  to  be  feared  has  been  afforded  by  the  case  of  Nevada,  a 
State  whose  inhabitants  number  only  about  40,000,  and  which 
is  really  a  grouji  of  mining  camps,  most  of  them  already  aban- 
doned. Its  population  is  obviously  unworthy  of  the  privilege 
of  sending  two  men  to  the  Senate,  and  has  in  fact  allowed 
itself  to  sink,  for  political  purposes,  into  a  sort  of  rotten 
borough  which  can  be  controlled  or  purchased  by  the  leaders 
of  a  Silver  Ring.  It  would  evidently  have  been  better  to  allow 
Nevada  to  remain  in  the  condition  of  a  Territory  till  a  large, 
settled  and  orderly  community  had  occupied  her  surface,  which 
is  at  present  a  parched  and  dismal  desert,  where  the  streams 
that  descend  from  the  eastern  slope  of  the  Sierra  Nevada  soon 
lose  themselves  in  lakes  or  marshes.  On  a  review  of  the  whole 
matter  it  may  safely  be  said  that  the  American  scheme  of 
Territorial  government,  though  it  suffers  from  the  occasional 
incompetence  of  the  Governor,  and  is  scarcely  consisteiit  with 
democratic  theory,  has  in  practice  worked  well,  and  gives  little 
ground  for  discontent  even  to  the  inhabitants  of  the  Terri- 
tories themselves. 


CHAPTEE   XLVIII 

LOCAL    GOVERNMENT 

This  is  the  place  for  an  account  of  local  government  in  the 
United  States,  because  it  is  a  matter  regulated  not  by  Federal 
law  but  by  the  several  States  and  Territories,  each  of  which 
establishes  such  local  authorities,  rural  and  urban,  as  the 
people  of  the  State  or  Territory  desire,  and  invests  them  with 
the  requisite  powers.  But  this  very  fact  indicates  the  im- 
mensity of  the  subject.  Each  State  has  its  own  system  of 
local  areas  and  authorities,  created  and  worked  under  its  own 
laws ;  and  though  these  systems  agree  in  many  points,  they 
differ  in  so  many  others,  that  a  whole  volume  would  be  needed 
to  give  even  a  summary  view  of  their  peculiarities.  All  I  can 
here  attempt  is  to  distinguish  the  leading  types  of  local  gov- 
ernment to  be  found  in  the  United  States,  to  describe  the 
prominent  features  of  each  type,  and  to  explain  the  influence 
which  the  large  scope  and  popular  character  of  local  adminis- 
tration exercise  upon  the  general  life  and  well-being  of  the 
American  people. 

Three  types  of  rural  local  government  are  discernible  in 
America.  The  first  is  characterized  by  its  unit,  the  Town  or 
Township,  and  exists  in  the  six  New  England  States.  The 
second  is  characterized  by  a  much  larger  unit,  the  county,  and 
prevails  in  the  southern  States.  The  third  combines  some 
features  of  the  first  with  some  of  the  second,  and  may  be 
called  the  mixed  system.  It  is  found,  under  a  considerable 
variety  of  forms,  in  the  middle  and  north-western  States. 
The  differences  of  these  three  types  are  interesting,  not  only 
because  of  the  practical  instruction  they  afford,  but  also  be- 
cause they  spring  from  original  differences  in  the  character  of 
the  colonists  who  settled  along  the  American  coast,  and  in  the 
conditions  under  which  the  communities  there  founded  were 
developed. 

589 


590  THE   STATE   GOVERNMENTS  part  ii 

The  first  New  England  settlers  were  Puritans  in  religion, 
and  sometimes  inclined  to  republicanism  in  politics.  They 
were  largely  townsfolk,  accustomed  to  municipal  life  and  to 
vestry  meetings.  They  planted  their  tiny  communities  along 
the  sea-shore  and  the  banks  of  rivers,  enclosing  them  with 
stockades  for  protection  against  the  warlike  Indians.  Each 
was  obliged  to  be  self-sufficing,  because  divided  by  rocks  and 
woods  from  the  others.  Each  had  its  common  pasture  on 
whicli  the  inhabitants  turned  out  their  cattle,  and  which  offi- 
cers were  elected  to  manage.  Each  was  a  religious  as  well  as 
a  civil  body  politic,  gathered  round  the  church  as  its  centre ; 
and  the  equality  which  prevailed  in  the  congregation  pre- 
vailed also  in  civil  affairs,  the  whole  community  meeting 
under  a  president  or  moderator  to  discuss  affairs  of  common 
interest.  Each  such  settlement  was  called  a  Town,  or  Town- 
ship, and  was  in  fact  a  miniature  commonwealth,  exercising  a 
practical  sovereignty  over  the  property  and  persons  of  its 
members  —  for  there  was  as  yet  no  State,  and  the  distant  home 
government  scarcely  cared  to  interfere — but  exercising  it  on 
thoroughly  democratic  principles.  Its  centre  was  a  group  of 
dwellings,  often  surrounded  by  a  fence  or  wall,  but  it  included 
a  rural  area  of  several  square  miles,  over  which  farmhouses 
and  clusters  of  houses  began  to  spring  up  when  the  Indians 
retired.  The  name  '"town"  covered  the  whole  of  this  area, 
which  was  never  too  large  for  all  the  inhabitants  to  come  to- 
gether to  a  central  place  of  meeting.  This  town  organization 
remained  strong  and  close,  the  colonists  being  men  of  narrow 
means,  and  held  together  in  each  settlement  by  the  needs  of 
defence.  And  though  presently  the  towns  became  aggregated 
into  counties,  and  the  legislature  and  governor,  first  of  the 
whole  colony,  and,  after  1776,  of  the  State,  began  to  exert 
their  superior  authority,  the  towns  (which,  be  it  remembered, 
remained  rural  communities,  making  up  the  whole  area  of  the 
State)  held  their  ground,  and  are  to  this  day  the  true  units  of 
political  life  in  New  England,  the  solid  foundation  of  that 
well-compacted  structure  of  self-government  which  European 
philosophers  have  admired  and  the  new  States  of  the  West 
have  sought  to  reproduce.    Till  1821^  the  towns  were  the  only 

1  Boston  continued  to  be  a  town  governed  by  a  primary  assembly  of  all 
citizens  till  1822 ;  and  even  then  the  town-meeting  was  not  quite  abolished, 


CHAP.  XLviii  LOCAL   GOVERNMENT  591 

political  corporate  bodies  in  Massachusetts,  and  till  1857  they 
formed,  as  they  still  form  in  Connecticut,  the  basis  of  repre- 
sentation in  her  Assembly,  each  town,  however  small,  return- 
ing at  least  one  member.  Not  a  little  of  that  robust,  if 
somewhat  narrow,  localism  which  characterizes  the  represen- 
tative system  of  America  is  due  to  this  originally  distinct  and 
self-sufficing  corporate  life  of  the  seventeenth  century  towns. 
Nor  is  it  without  interest  to  observe  that  although  they  owed 
much  to  the  conditions  which  surrounded  the  early  colonists, 
forcing  them  to  develop  a  civic  patriotism  resembling  that  of 
the  republics  of  ancient  Greece  and  Italy,  they  owed  some- 
thing also  to  those  Teutonic  traditions  of  semi-independent 
local  communities,  owning  common  property,  and  governing 
themselves  by  a  primary  assembly  of  all  free  inhabitants, 
Avhich  the  English  had  brought  with  them  from  the  Elbe  and 
the  Weser,  and  which  had  been  perpetuated  in  the  practice 
of  many  parts  of  England  down  till  the  days  of  the  Stuart 
kings. 

Very  different  were  the  circumstances  of  the  Southern 
colonies.  The  men  who  went  to  Virginia  and  the  Carolinas 
were  not  Puritans,  nor  did  they  mostly  go  in  families  and 
groups  of  families  from  the  same  neighbourhood.  Many  were 
casual  adventurers,  often  belonging  to  the  upper  class.  Episco- 
palians in  religion,  and  with  no  such  experience  of,  or  attach- 
ment to,  local  self-government  as  the  men  of  Massachusetts  or 
Connecticut.  They  settled  in  a  region  where  the  Indian  tribes 
were  comparatively  peaceable,  and  where  therefore  there  was 
little  need  of  concentration  for  the  purposes  of  defence.  The 
climate  along  the  coast  was  somewhat  too  hot  for  European 
labour,  so  slaves  were  imported  to  cultivate  the  land.  Popu- 
lation was  thinly  scattered ;  estates  were  large ;  the  soil  was 
fertile  and  soon  enriched  its  owners.  Thus  a  semi-feudal 
society  grew  up,  in  which  authority  naturally  fell  to  the  land- 
owners, each  of  whom  was  the  centre  of  a  group  of  free  de- 

for  a  provision  was  introduced,  intended  to  satisfy  conservative  democratic 
feelinjT,  into  tlie  city  charter  f^raiited  hy  statute  in  that  year,  empowering  the 
mayor  and  aldermen  lo  call  general  meetings  of  the  citizens  qualified  to  vote 
in  city  affairs  "to  consult  ujiou  the  common  good,  to  give  instructions  to 
their  representatives,  and  to  t;ike  all  lawful  means  to  obtain  a  redress  of 
any  grievances."  Such  primary  assemblies  are,  however,  never  now  con- 
voked. 


592  THE   STATE    GOVERNMENTS  part  ii 

pendants  as  well  as  the  master  of  an  increasing  crowd  of  slaves. 
There  were  therefore  comparatively  few  urban  communities, 
and  the  life  of  the  colony  took  a  rural  type.  The  houses  of 
the  planters  lay  miles  apart  from  one  another  ;  and  when  local 
divisions  had  to  be  created,  these  were  made  large  enough  to 
include  a  considerable  area  of  territory  and  number  of  land- 
owning gentlemen.  They  were  therefore  rural  divisions, 
counties  framed  on  the  model  of  English  counties.  Smaller 
circumscriptions  there  were,  such  as  hundreds  and  parishes, 
but  the  hundred  died  out,^  the  parish  ultimately  became  a 
purely  ecclesiastical  division,  and  the  parish  vestry  was  re- 
stricted to  ecclesiastical  functions,  while  the  county  remained 
the  practically  important  unit  of  local  administration,  the  unit 
to  which  the  various  functions  of  government  were  aggregated, 
and  which,  itself  controlling  minor  authorities,  was  controlled 
by  the  State  government  alone.  The  affairs  of  the  county 
were  usually  managed  by  a  board  of  elective  commissioners, 
and  not,  like  those  of  the  New  England  towns,  by  a  primary 
assembly ;  and  in  an  aristocratic  society  the  leading  planters 
had  of  course  a  predominating  influence.  Hence  this  form  of 
local  government  was  not  only  less  democratic,  but  less  stimu- 
lating and  educative  than  that  which  prevailed  in  the  New 
England  States.  Nor  was  the  Virginian  county,  though  so 
much  larger  than  the  New  England  town,  ever  as  important 
an  organism  over  against  the  State.  It  may  almost  be  said, 
that  while  a  New  England  State  is  a  combination  of  towns,  a 
Southern  State  is  from  the  first  an  administrative  as  well  as 
political  whole,  whose  subdivisions,  the  counties,  had  never 
any  truly  independent  life,  but  were  and  are  mere  subdivisions 
for  the  convenient  dispatch  of  judicial  and  financial  business. 
In  the  middle  States  of  the  Union,  Pennsylvania,  New  Jer- 
sey, and  New  York,  settled  or  conquered  by  Englishmen  some 
time  later  than  New  England,  the  town  and  town  meeting  did 

1  In  Maryland  hundreds,  which  still  exist  in  Delaware,  were  for  a  long  time 
the  chief  administrative  divisions.  We  hear  there  also  of  "baronies"  and 
"townlands,"  as  in  Ireland;  and  Maryland  is  usually  called  a  "province," 
while  the  other  settlements  are  colonies.  Among  its  judicial  establishments 
there  were  courts  of  pypowdry  {pie  poudre)  and  "  hustings." 

The  hundred  is  a  division  of  small  consequence  in  southern  England,  but  in 
Lancashire  it  has  some  important  duties.  It  repairs  the  bridges ;  it  is  liable 
for  damage  done  in  a  riot ;  and  it  had  its  high  constable. 


CHAP.  XLViii  LOCAL   GOVERNMENT  593 

not  as  a  rule  exist,  and  tlie  county  was  the  original  basis  of 
organization.  But  as  there  grew  up  no  planting  aristocracy 
like  that  of  Virginia  or  the  Carolinas,  the  course  of  events 
took  in  the  middle  States  a  different  direction.  As  trade  and 
manufactures  grew,  population  became  denser  than  in  the 
South.  New  England  influenced  them,  and  influenced  still 
more  the  newer  commonwealths  which  arose  in  the  Korth-west, 
such  as  Ohio  and  Michigan,  into  which  the  surplus  population 
of  the  East  poured.  And  the  result  of  this  influence  is  seen 
in  the  growth  through  the  middle  and  western  States  of  a 
mixed  system,  which  presents  a  sort  of  compromise  between 
the  County  system  of  the  South  and  the  Town  system  of  the 
North-east.  There  are  great  differences  between  the  arrange- 
ments in  one  or  other  of  these  middle  and  western  States. 
But  it  may  be  said,  speaking  generally,  that  in  them  the 
county  is  relatively  less  important  than  in  the  southern  States, 
the  township  less  important  than  in  New  England.  The 
county  is  perhaps  to  be  regarded,  at  least  in  New  York,  Penn- 
sylvania, and  Ohio,  as  the  true  unit,  and  the  townships  (for 
so  they  are  usually  called)  as  its  subdivisions.  But  the  town- 
ships are  vigorous  organisms,  which  largely  restrict  the  func- 
tions of  the  couiity  authority,  and  give  to  local  government, 
especially  in  the  North-west,  a  character  generally  similar  to 
that  which  it  wears  in  New  England. 

So  much  for  the  history  of  the  subject;  a  history  far  more 
interesting  in  its  details  than  will  be  supposed  from  the  rough 
sketch  to  which  limits  of  space  restrict  me.  Let  us  now  look 
at  the  actual  constitution  and  working  of  the  organs  of  local 
government  in  the  three  several  regions  mentioned,  beginning 
with  New  England  and  the  town  system.^  I  will  first  set  forth 
the  dry  but  necessary  outline,  reserving  comments  for  the  fol- 
lowing chapter. 

1  The  word  Town,  which  I  write  with  a  capital  when  using  it  in  the  Ameri- 
can sense,  is  the  Icelandic  tiin,  Anglo-Saxon  ti'oi,  German  zauii,  and  seems 
originally  to  have  meant  a  hedge,  then  a  hedged  or  fenced  plot  or  enclosure. 
In  Scotland  (wliere  it  is  pronounced  "toon")  it  still  denotes  the  farmhouse 
and  buildings;  in  Iceland  the  manured  grass  plot,  enclosed  within  a  low  green 
bank  or  raised  dyke,  whicli  surrounds  the  haer  or  farmhouse.  In  joarts  of 
eastern  England  the  chief  cluster  of  liouses  in  a  parish  is  still  often  called  "  the 
town."  In  the  North  of  England,  where  the  parishes  are  more  frequently 
large  than  they  are  in  the  South,  the  civil  divisions  of  a  parish  are  called 
townships. 

VOL.  I  2  Q 


694  THE    STATE   GOVERNMENTS  part  ii 

The  Town  is  in  rural  districts  the  smallest  local  circumscrip- 
tion. English  readers  must  be  reminded  that  it  is  a  rural,  not 
an  urban  community,  and  that  the  largest  group  of  houses  it 
contains  may  be  only  what  would  be  called  in  England  a  ham- 
let or  small  village.  Its  area  seldom  exceeds  five  square 
miles ;  its  population  is  usually  small,  averaging  less  than 
3000,  but  occasionally  ranges  up  to  13,000,  and  sometimes  falls 
below  200.^  It  is  governed  by  an  assembly  of  all  qualified 
voters  resident  within  its  limits,  which  meets  at  least  once  a 
year,  in  the  spring  (a  reminiscence  of  the  Easter  vestry  of 
England),  and  from  time  to  time  as  summoned.  There  are 
usually  three  or  four  meetings  each  year.  Notice  is  required 
to  be  given  at  least  ten  days  previously,  not  only  of  the  hour 
and  place  of  meeting,  but  of  the  business  to  be  brought  for- 
ward. This  assembly  has,  like  the  Roman  Comitia  and  the 
La:idesgemeinde  in  four  of  the  older  Swiss  Cantons,  the  power 
both  of  electing  officials  and  of  legislating.  It  chooses  the 
selectmen,  school  committee,  and  executive  officers  for  the 
coming  year ;  it  enacts  bye-laws  and  ordinances  for  the  regula- 
tion of  all  local  affairs;  it  receives  the  reports  of  the  select- 
men and  the  several  committees,  passes  their  accounts,  hears 
what  sums  they  propose  to  raise  for  the  expenses  of  next  year, 
and  votes  the  necessary  taxation  accordingly,  appropriating  to 
the  various  local  purposes  —  schools,  aid  to  the  poor,  the 
repair  of  highways,  and  so  forth  —  the  sums  directed  to  be 
levied.  Its  powers  cover  the  management  of  the  town  lands 
and  other  property,  and  all  local  matters  whatsoever,  including 
police  and  sanitation.  Every  resident  has  the  right  to  make, 
and  to  support  by  speech,  any  proposal.  The  meeting  which 
is  presided  over  by  a  chairman  called  the  Moderator  —  a  name 
recalling  the  ecclesiastical  assemblies  of  the  English  Common- 
wealth^—  is  held  in  the  town  hall,  if  the  Town  possesses  one, 
or  in  the  principal  church  or  schoolhouse,  but  sometimes  in  the 
open  air.    The  attendance  is  usually  good ;  the  debates  sensible 

1 1  find  in  Massachusetts  one  town  (New  Asliford)  with  only  125  inhabitants, 
and  one  (Pittsfield)  with  17,281.  But  both  in  this  and  other  New  England 
States  most  towns  have  a  population  of  from  1200  to  2500. 

2  The  presiding  officer  in  the  synods  and  assemblies  of  the  Scottish  Presby- 
terian Churches  is  still  called  the  Moderator.  This  is  also  the  president's  title 
in  the  synods  of  the  American  Presbyterian  churches,  and  in  the  councils  of 
the  Congregationalist  and  associations  of  the  Baptist  churches. 


CHAP.  XLviii  LOCAL   GOVEKNMENT  595 

and  practical.  Mucli  of  course  depends  on  the  character  and 
size  of  the  population.  Where  it  is  of  native  American  stock, 
and  the  number  of  voting  citizens  is  not  too  great  for  thorough 
and  calm  discussion,  no  better  school  of  politics  can  be  imag- 
ined, nor  any  method  of  managing  local  affairs  more  certain  to 
prevent  jobbery  and  waste,  to  stimulate  vigilance  and  breed 
contentment.^  When,  however,  the  town  meeting  has  grown 
to  exceed  seven  or  eight  hundred  persons,  where  the  element 
of  farmers  has  been  replaced  by  that  of  factory  operatives,  and 
still  more  when  any  considerable  section  are  strangers,  such  as 
the  Irish  or  French  Canadians  who  have  latterly  poured  into 
New  England,  the  institution  works  less  perfectly,  because  the 
multitude  is  too  large  for  debate,  factions  are  likely  to  spring 
up,  and  the  new  immigrants,  untrained  in  self-government, 
become  the  prey  of  wirepullers  or  petty  demagogues.  The 
social  conditions  of  to-day  in  New  England  are  less  favourable 
than  those  which  gave  birth  to  it;  and  there  are  now  in  the 
populous  manufacturing  States  of  Massachusetts,  Khode 
Island,  and  Connecticut  comparatively  few  purel}-  rural  towns, 
such  as  those  which  suggested  the  famous  eulogium  of  Jeffer- 
son, who  eight}^ "  years  ago  desired  to  see  the  system  trans- 
planted to  his  own  Virginia : 

"  Those  wards  called  townships  in  New  England  are  the  vital 
principle  of  their  governments,  and  have  proved  themselves 
the  wisest  invention  ever  devised  by  the  wit  of  man  for  the 
perfect  exercise  of  self-government,  and  for  its  preservation. 
...  As  Cato  then  concluded  every  speech  with  the  words 
'  Carthago  delenda  est,'  so  do  I  every  opinion  with  the  injunc- 
tion '  Divide  the  counties  into  wards.' " 

The  executive  of  a  Town  consists  of  the  selectmen,  from 
three  to  nine  in  number,  usually  either  three,  five,  or  seven. 
They  are  elected  annually,  and  manage  all  the  ordinary  busi- 
ness, of  course  under  the  directions  given  them  by  the  last  pre- 
ceding meeting.  There  is  also  a  Town-clerk,  who  keeps  the 
records,  and  minutes  the  proceedings  of  the  meeting,  and  is 
generally  also  registrar  of  births  and  deaths ;  a  treasurer ;  as- 

1  See  an  interesting  account  of  tlie  town  meeting  thirty  years  ago  in  Mr. 
J.  K.  Hosmer's  Life  of  Samuel  Adams,  chap,  xxiii.  An  instructive  descrip- 
tion of  a  typical  New  England  Town  may  be  found  in  a  pamphlet  entitled 
The  Town  of  Groton,  by  Dr.  S.  Green,  late  Mayor  of  Boston. 


596  THE   STATE   GOVERNMENTS  part  ii 

sessors,  who  make  a  valuation  of  i)roperty  within  the  Town 
for  the  purposes  of  taxation ;  the  collector,  who  gathers  the 
taxes,  and  divers  minor  officers,  such  as  hog-reeves^  (now 
usually  called  field  drivers),  cemetery  trustees,  library  trustees, 
and  so  forth,  according  to  local  needs.  There  is  always  a  school 
committee,  Avith  sometimes  sub-committees  for  minor  school 
districts  if  the  Town  be  a  large  one.  Some  of  these  officers 
and  committees  are  paid  (the  selectmen  -usually),  some  unpaid, 
though  allowed  to  charge  their  expenses  actually  incurred  in 
Town  work;  and  there  has  generally  been  no  difficulty  in  get- 
ting respectable  and  competent  men  to  undertake  the  duties. 
Town  elections  are  not  profes>:edly  political,  i.e.  they  are  not 
usually  fought  on  party  lines,  though  occasionally  party  spirit 
affects  them,  and  a  man  prominent  in  his  party  is  more  likely 
to  obtain  support." 

1  Mr.  R.  W.  Emerson  served  in  this  capacity  in  his  Town,  fulfilling  the  duty 
understood  to  devolve  on  every  citizen  of  accepting  an  office  to  which  the  Town 
appoints  him. 

■^  When  a  Town  reaches  a  certain  population  it  is  usually  transformed  by 
law  into  a  City ;  but  occasionally,  while  the  City  is  created  as  a  municipal  cor- 
poration within  the  limits  of  a  Town,  the  Town  continues  to  exist  as  a  distinct 
organization.  A  remarkable  instance  is  furnished  by  the  Town  and  City  of 
New  Haven,  in  Connecticut.  New  Haven  was  incorporated  as  a  city  in  1784.  But 
it  continued  to  be  and  is  still  a  town  also.  Three-fourths  of  the  area  of  the  town 
and  seventeen-eighteenths  of  its  population  are  within  the  limits  of  the  city. 
But  the  two  governments  remain  completely  distinct.  The  city  has  its  mayor, 
aldermen,  and  common  council,  and  its  large  executive  staff.  The  town  meet- 
ing elects  its  selectmen  and  other  officers,  152  in  all,  receives  their  reports, 
orders  and  appropriates  taxes,  and  so  forth.  Practically,  however,  it  is  so  much 
dwarfed  by  the  city  as  to  attract  little  attention.  Says  Mr.  Levermore : 
"This  most  venerable  institution  appears  to-day  in  the  guise  of  a  gathering  of 
a  few  citizens,  who  do  the  work  of  as  many  thousands.  The  few  individuals 
who  are  or  have  been  officially  interested  in  the  government  of  the  town,  meet 
together,  talk  over  matters  in  a  friendly  way,  decide  what  the  rate  of  taxation 
for  the  coming  year  shall  be,  and  adjourn.  Not  one-seventieth  part  of  the  citi- 
zens of  the  town  has  attended  an  annual  town  meeting;  they  hardly  know  when 
it  is  held.  The  newspapers  give  its  transactions  a  scant  notice,  which  some  of 
their  subscribers  probably  read.  The  actual  governing  force  of  the  town  is  there- 
fore an  oligarchy  in  the  bosom  of  a  slumbering  democracy.  But  the  town  is  well 
governed.  Its  government  carries  too  little  spoil  to  attract  those  unreliable 
politicians  who  infest  the  city  council.  If  the  ruling  junto  should  venture  on 
too  lavish  a  use  of  the  town's  money,  an  irresistible  check  would  appear  at 
once.  Any  twenty  citizens  could  force  the  selectmen  to  summon  the  town  to- 
gether, and  the  apparent  oligarchy  would  doubtless  go  down  before  the 
awakened  people."  —  "The  Town  and  City  Government  of  New  Haven,"  in 
J.  H.  U.  Studies,  Fourth  Series. 

The  student  of  Roman  history  will  find  in  this  quaint  survival  of  an  ancient 
assembly  some  resemblance  to  "the  comitia  curiaia  of  Rome  under  the  later 
Republic.    But  the  American  survival  is  the  more  vigorous  of  the  two. 


CHAP.  XLViii  LOCAL   GOVERNMENT  697 

Next  above  the  Town  stands  the  county.  Its  area  and  popu- 
lation vary  a  good  deal.  Massachusetts  with  an  area  of  8040 
square  miles  has  fourteen  counties ;  Rhode  Island  with  1085 
square  miles  has  five;  the  more  thinly  peopled  Maine,  with 
29,985  square  miles,  has  sixteen,  giving  an  average  of  about 
1100  square  miles  to  each  county  on  these  three  States,  though 
in  Ehode  Island  the  average  is  only  217  stj^uare  miles.  Simi- 
larly the  populations  of  the  counties  vary  from  4000  to  30,000 ; 
the  average  population  being,  where  there  are  no  large  cities, 
from  20,000  to  40,000.^  The  county  was  originally  an  aggrega- 
tion of  Towns  for  judicial  purposes,  and  is  still  in  the  main  a 
judicial  district  in  and  for  which  civil  and  criminal  courts  are 
held,  some  by  county  judges,  some  by  State  judges,  and  in  and 
for  which  certain  judicial  officers  are  elected  by  the  people  at 
the  polls,  who  also  choose  a  sheriff  and  a  clerk.  Police  belongs 
to  the  Towns  and  cities,  not  to  the  county  within  which  they 
lie.  The  chief  administrative  officers  are  the  county  commis- 
sioners, of  whom  there  are  three  in  Massachusetts  (elected  for 
three  years,  one  in  each  year),  and  county  treasurer.^  They 
are  salaried  officers,  and  have  the  management  of  county  build- 
ings, such  as  court-houses  and  prisons,  with  power  to  lay  out 
new  highways  from  town  to  town,  to  grant  licences,  estimate 
the  amount  of  taxation  needed  to  defra}^  county  charges,''  and 
apportion  the  county  tax  among  the  towns  and  cities  by  whom 
it  is  to  be  levied.  But  except  in  this  last-mentioned  respect 
the  county  authority  has  no  power  over  the  Towns,  and  it  will 
be  perceived  that  while  the  county  commissioners  are  con- 
trolled by  the  legislature,  being  limited  by  statute  to  certain 
well-defined  administrative  functions,  there  exists  nothing  in 
the  nature  of  a  county  council  or  other  assembly  with  legis- 
lative functions.  The  functions  of  the  county  are  in  fact  of 
small  consequence  :  it  is  a  judicial  district  and  a  highway  dis- 
trict and  little  more. 

This  New  England  system  resembles  that  of  Old  England 

1  The  average  population  of  a  Massachusetts  county  is  IfiO.OOO,  the  two 
smallest  counties  having  only  4;5(;!)  and  3268  respectively,  the  largest  4S4,780. 

2  In  Rhode  Island  there  are  none  but  judicial  otticers  for  tlie  counties.  In 
Vermont  I  find  besides  judges,  a  state  attorney,  high  bailiff,  and  county 
clerk.     In  Massnchnsetts  all  judges  are  appointed  by  llie  governor. 

3  The  chief  items  of  county  expenditure  are  those  for  judicial  purposes,  in- 
cluding the  maintenance  of  buildings,  and  for  roads  and  bridges. 


598  THE   STATE   GOVERNMENTS  part  ii 

as  the  latter  stood  during  the  centuries  that  elapsed  between 
the  practical  disappearance  of  the  old  County  Court  or  Shire 
Moot  and  the  creation  by  comparatively  recent  statutes  of  such 
intermediate  bodies  and  authorities  as  poor-law  unions,  high- 
way districts  and  boards,  local  sanitary  authorities.  If  we 
compare  the  New  England  scheme  with  that  of  tlie  England 
of  to-day,  we  are  struck  not  only  by  the  greater  simplicity  of 
the  former,  but  also  by  the  fact  that  it  is  the  smaller  organisms, 
the  Towns,  that  are  most  powerful  and  most  highly  vitalized. 
Nearly  everything  belongs  to  them,  only  those  duties  devolv- 
ing on  the  counties  which  a  small  organism  obviously  cannot 
undertake.  The  system  of  self-governing  Towns  no  doubt 
works  under  the  supervision  of  a  body,  the  State  legislature, 
which  can  give  far  closer  attention  to  local  affairs  than  the 
English  parliament  can  give  to  English  local  business.  But 
in  point  of  fact  the  State  legislature  interferes  but  little  (less, 
I  think,  than  the  Local  Government  Board  interferes  in  Eng- 
land) with  the  conduct  of  rural  local  business,  though  often 
required  to  deal  with  the  applications  which  Towns  make  to 
be  divided  or  have  their  boundaries  altered,  and  which  are  fre- 
quently resisted  by  a  part  of  the  inhabitants. 

The  system  which  prevails  in  the  Southern  States  need  not 
long  detain  us,  for  it  is  less  instructive  and  has  proved  less 
successful.  Here  the  unit  is  the  county,  except  in  Louisiana, 
where  the  equivalent  division  is  called  a  parish.  The  county 
was  originally  a  judicial  division,  established  for  the  purposes 
of  local  courts,  and  a  financial  one,  for  the  collection  of  State 
taxes.  It  has  now,  however,  generally  received  some  other 
functions,  such  as  the  superintendence  of  public  schools,  the 
care  of  the  poor,  and  the  management  of  roads.  In  the  South 
counties  are  larger  than  in  New  England,  but  not  more  popu- 
lous, for  the  country  is  thinly  peopled.^  The  county  officers, 
whose  titles  and  powers  vary  somewhat  in  different  States, 
are  usually  the  Board  or  Court  of  county  commissioners,  an 
assessor  (who  prepares  the  valuation),  a  collector  (who  gathers 

1  Georgia,  with  59,475  square  miles,  has  137  counties ;  Alabama,  with  52,250 
square  miles,  has  Of!.  Speaking  generally,  the  newer  States  have  the  larger 
counties,  just  as  in  England  the  smallest  parishes  are  in  the  first  settled  parts 
of  England,  or  rather  in  those  parts  where  population  was  comparatively  dense 
at  the  time  when  parishes  sprang  up. 


CHAP.  XLTiii  LOCAL  GOVERNMENT  599 

the  taxes  ^),  a  treasurer,  a  superintendent  of  education,  an 
overseer  of  roads  —  all  of  course  salaried,  and  now,  as  a  rule, 
elected  by  the  people,  mostly  for  one  or  two  years.^  These 
county  officers  have,  besides  the  functions  indicated  by  their 
names,  the  charge  of  the  police  and  the  poor  of  the  county, 
and  of  the  construction  of  public  works,  such  as  bridges  and 
prisons.  The  county  judges  and  the  sheriff,  and  frequently  the 
.coroner,  are  also  chosen  by  the  people.  The  sheriff  is  every- 
where in  America  neither  an  ornamental  person,  as  he  has 
become  in  England,  nor  a  judge,  with  certain  executive  func- 
tions, as  in  Scotland,  bat  the  chief  executive  officer  attached 
to  the  judicial  machinery  of  the  county. 

In  these  southern  States  there  exist  various  local  divisions 
smaller  than  the  counties.^  Their  names  and  their  attributions 
vary  from  State  to  State,  but  they  have  no  legislative  author- 
ity like  that  of  the  Town  meeting  of  New  England,  and  their 
officers  have  very  limited  powers,  being  for  most  purposes 
controlled  by  the  county  authorities.  The  most  important 
local  body  is  the  school  committee  for  each  school  district. 
In  several  States,  such  as  Virginia  and  North  Carolina,  we  now 
find  townships,  and  the  present  tendency  seems  in  these 
States  to  be  towards  the  development  of  something  resembling 
the  New  England  Town.  It  is  a  tendency  which  grows  with 
the  growth  of  population,  with  the  progress  of  manufactures 
and  of  the  middle  and  industrious  working  class  occupied 
therein,  and  especially  with  the  increased  desire  for  education. 
The  school,  some  one  truly  says,  is  becoming  the  nucleus  of 
local  self-government  in  the  South  now,  as  the  church  was  in 
New  England  two   centuries   ago.^    Nowhere,  however,    has 

1  Sometimes,  as  in  Louisiana,  the  sheriff  is  also  tax  collector. 

2  In  some  States  some  of  these  officials  are  nominated  by  the  governor.  In 
Florida  the  governor  appoints  even  the  hoard  of  five  county  commissioners. 
Constit.  of  1886,  Art.  viii.  §  5.  The  other  county  officers,  viz.  clerk  of  circuit 
court,  sheriff,  constables,  assessor  of  taxes,  tax-collector,  treasurer,  superin- 
tendent of  public  instruction,  and  surveyor,  arc  elected  by  the  people  for  two 
or  four  years  (§  G) . 

3  In  South  Carolina  the  parish  was  originally  a  pretty  strong  local  unit,  but 
it  withered  away  as  the  county  grew  under  the  influence  of  the  plantation 
system.  The  word  "parish"  is  in  America  now  practically  equivalent  to 
"  congregation,"  and  does  not  denote  a  local  area. 

4  Virginia  has  moved  in  this  direction.  See  the  interesting  Treatise  (pub- 
lished since  the  first  edition  of  this  book)  of  Mr.  George  E.  Howard,  on  the 
Local  Constitutional  History  of  the  United  States. 


600  THE   STATE   GOVERNMENTS  part  il 

there  appeared  a  primary  assembly  ;  while  the  representative 
local  assembly  is  still  in  its  infancy.  Local  authorities  in  the 
South,  and  in  the  States  which,  like  Nevada  and  Oregon,  may 
be  said  to  have  adopted  the  county  system,  are  generally 
executive  officers  and  nothing  more. 

The  third  type  is  less  easy  to  characterize  than  either  of  the 
two  preceding,  and  the  forms  under  which  it  appears  in  the 
middle  and  north-western  States  are  even  more  various  than 
those  referable  to  the  second  type.  Two  features  mark  it. 
One  is  the  importance  and  power  of  the  county,  which  in  the 
history  of  most  of  these  States  appears  before  any  smaller 
division ;  the  other  is  the  activity  of  the  township,^  which  has 
more  independence  and  a  larger  range  of  competence  than 
under  the  system  of  the  South.  Now  of  these  two  features 
the  former  is  the  more  conspicuous  in  one  group  of  States  — 
Pennsylvania,  New  Jersey,  New  York,  Ohio,  Indiana,  Iowa; 
the  latter  in  another  group  —  Michigan,  Illinois,  Wisconsin, 
Minnesota,  the  two  Dakotas,  the  reason  being  that  the  New 
Englanders,  who  were  often  the  largest  and  always  the  most 
intelligent  and  energetic  element  among  the  settlers  in  the  more 
northern  of  these  two  State  groups,  carried  with  them  their 
attachment  to  the  Town  system  and  their  sense  of  its  value,  and 
succeeded,  though  sometimes  not  without  a  struggle,  in  estab- 
lishing it  in  the  six  great  and  prosperous  commonwealths  which 
form  that  group.  On  the  other  hand,  while  Pennsylvania, 
New  Jersey,  and  New  York  had  not  (from  the  causes  already 
stated)  started  with  the  Town  system,  they  never  adopted  it 
completely;  while  in  Ohio  and  Indiana  the  influx  of  settlers 
from  the  Slave  States,  as  well  as  from  New  York  and  Penn- 
sylvania, gave  to  the  county  an  early  preponderance,  which  it 
has  since  retained.  The  conflict  of  the  New  England  element 
with  the  Southern  element  is  best  seen  in  Illinois,  the  northern 
half  of  which  State  was  settled  by  men  of  New  England  blood, 
the  southern  half  by  pioneers  from  Kentucky  and  Tennessee. 
The  latter,  coming  first,  established  the  county  system,  but  the 
New  Englanders  fought  against  it,  and  in  the  constitutional 
convention  of  1848  carried  a  provision,  embodied  in  the  consti- 
tution of  that  year,  and  repeated  in  the  present  constitution  of 

1  Township  is  the  term  most  frequently  used  outside  New  England :  Town 
in  New  England. 


I 


CHAP.  XLviii  LOCAL   GOVERNMENT  601 

1870,  whereby  any  county  may  adopt  a  system  of  township 
organization  "  whenever  the  majority  of  the  legal  voters  of  the 
county  voting  at  any  general  election  shall  so  determine."^ 
Under  this  power  four-fifths  of  the  102  counties  have  now 
adopted  the  township  system. - 

Illinois  furnishes  so  good  a  sample  of  that  system  in  its 
newer  form  that  I  cannot  do  better  than  extract  from  a  clear 
and  trustworthy  writer,  the  following  account  of  the  whole 
scheme  of  local  self-government  in  that  State,  which  is  fairly 
typical  of  the  Xorth-west :  — 

"When  the  people  of  a  county  have  voted  to  adopt  the  township 
system,  the  commissioners  proceed  to  divide  the  county  into  towns,  mak- 
ing them  conform  with  the  congressional  or  school  townships,  except  in 
special  cases.  Every  town  is  invested  with  corporate  capacity  to  be  a 
party  in  legal  suits,  to  own  and  control  property,  and  to  make  con- 
tracts. The  annual  town  meeting  of  the  whole  voting  population,  held 
on  the  first  Tuesday  in  April,  for  the  election  of  town  officers  and  the 
transaction  of  miscellaneous  business,  is  the  central  fact  in  the  town 
government.  The  following  is  a  summary  of  what  the  people  may  do  in 
town  meeting.  They  may  make  any  orders  concerning  the  acquisition, 
use,  or  sale  of  town  property  ;  direct  officers  in  the  exercise  of  their 
duties  ;  vote  taxes  for  roads  and  bridges,  and  for  other  lawful  purposes  ; 
vote  to  institute  or  defend  suits  at  law  ;  legislate  on  the  subject  of  noxious 
weeds,  and  offer  rewards  to  encourage  the  extermination  of  noxious 
plants  and  vermin  ;  regulate  the  running  at  large  of  cattle  and  other 
animals  ;  establish  pounds,  and  provide  for  the  impounding  and  sale  of 
stray  and  trespassing  animals  ;  provide  public  wells  and  watering-places  ; 
enact  bye-laws  and  rules  to  carry  their  powers  into  effect  ;  impose  fines 
and  penalties,  and  apply  such  fines  in  any  manner  conducive  to  the 
interests  of  the  town.^ 

"  The  town  officers  are  a  supervisor,  who  is  e.T.  officio  overseer  of  the 
poor,  a  clerk,  an  assessor,  and  a  collector,  all  of  whom  are  chosen  an- 
nually ;  three  commissioners  of  highways  elected  for  three  years,  one  re- 
tiring every  year  ;  and  two  justices  of  the  peace  and  two  constables,  who 
hold  office  for  four  years. 

1  See  Constitution  of  1870,  Art.  x.  §  5,  where  a  provision  is  added  that  any 
county  desiring  to  forsake  township  organization  may  do  so  by  a  vote  of  the 
electors  in  the  county,  in  which  case  it  comes  under  the  county  system  pre- 
scribed in  the  following  sections  of  that  article. 

2  Illinois  has  102  counties,  with  an  average  population,  in  1890,  of  36,000  ; 
Iowa  99  counties,  with  an  average  population  of  19,000.  England  (excluding 
Wales)  has  40  counties,  with  an  average  population,  in  1891.  of  687,000. 

3  There  are  English  analogies  to  all  these  powers,  but  in  England  some  of 
them  are  or  were  exercised  in  the  Manor  court  and  not  in  the  Vestry. 


602  THE   STATE   GOVEKNMENTS  part  ii 

"  On  the  morning  api^ointed  for  the  town  meeting  the  voters  assemble, 
and  proceed  to  choose  a  moderator,  who  presides  for  the  day.  Balloting 
for  town  officers  at  once  begins,  the  supervisor,  collector,  and  assessor 
acting  as  election  judges.  Every  male  citizen  of  the  United  States  who  is 
twenty-one  years  old,  who  has  resided  in  the  State  a  year,  in  the  county 
ninety  days,  and  in  the  township  thirty  days,  is  entitled  to  vote  at 
town  meeting;  but  a  year's  residence  in  the  town  is  required  for  eligibil- 
ity to  office.  At  two  o'clock  the  moderator  calls  the  meeting  to  order  for 
the  consideration  of  business  pertaining  to  those  subjects  already  enum- 
erated. Everything  is  done  by  the  visual  rules  and  methods  of  parlia- 
mentary bodies.  The  clerk  of  the  town  is  secretary  of  the  meeting,  and 
preserves  a  record  of  all  the  proceedings.  Special  town  meetings  may  be 
held  whenever  the  supervisor,  clerk,  or  justices,  or  any  two  of  them,  to- 
gether with  fifteen  voters,  shall  have  filed  with  the  clerk  a  statement  that 
a  meeting  is  necessary,  for  objects  which  they  specify.  The  clerk  then 
gives  public  notice  in  a  prescribed  way.  Such  special  meetings  act  only 
upon  the  subjects  named  in  the  call. 

"  The  supervisor  is  both  a  town  and  a  county  officer.  He  is  general  man- 
ager of  town  business,  and  is  also  a  member  of  the  county  board,  which  is 
composed  of  the  supervisors  of  the  several  towns,  and  which  has  general 
control  of  the  county  business.  As  a  town  officer,  he  receives  and  pays 
out  all  town  money,  excepting  the  highway  and  school  funds.  His  finan- 
cial report  is  presented  by  the  clerk  at  town  meeting.  The  latter  officer  is 
the  custodian  of  the  town's  records,  books,  and  papers.  The  highway 
commissioners,  in  their  oversight  of  roads  and  bridges,  are  controlled  by 
a  large  body  of  statute  law,  and  by  the  enactments  of  the  town  meeting. 
Highways  are  maintained  by  taxes  levied  on  real  and  personal  property, 
and  by  a  poll-tax  of  two  dollars,  exacted  from  every  able-bodied  citizen 
between  the  ages  of  twenty-one  and  fifty.  It  may  be  paid  in  money  or 
in  labour  under  the  direction  of  the  commissioners.  One  of  the  commis- 
sioners is  constituted  treasurer,  and  he  receives  and  pays  out  all  road 
moneys. 

"  The  supervisor  acts  as  overseer  of  the  poor.  The  law  leaves  it  to  be 
determined  by  the  people  of  a  county  whether  the  separate  towns  or  the 
county  at  large  shall  assume  the  care  of  paupers.  Wlien  the  town  has 
the  matter  in  charge,  the  overseer  generally  provides  for  the  indigent  by 
a  system  of  out-door  relief.  If  the  county  supports  the  poor,  the  county 
board  is  authorized  to  establish  a  poor-house  and  farm  for  the  jDermanent 
care  of  the  destitute,  and  temporary  relief  is  afforded  by  the  overseers 
in  their  respective  towns,  at  the  county's  expense. 

' '  The  board  of  town  auditors,  composed  of  the  supervisor,  the  clerk, 
and  the  justices,  examine  all  accounts  of  the  supervisor,  overseer  of  poor, 
and  highway  commissioners  ;  pass  upon  all  claims  and  charges  against 
the  town,  and  audit  all  bills  for  compensation  presented  by  town  officers. 
The  accounts  thus  audited  are  kept  on  file  by  the  clerk  for  public  inspec- 
tion, and  are  reported  at  the  next  town  meeting.  The  supervisor,  asses- 
sor, and  clerk  constitute  a  Board  of  Health.  The  clerk  records  their 
doings,  and  reports  them  at  the  meetings  of  the  town. 


CHAP.  XLviii  LOCAL   GOVERNMENT  603 

"  No  stated  salaries  are  paid  to  town  oificers.  They  are  compensated 
according  to  a  schedule  of  fixed  fees  for  specific  services,  or  else  receive 
certain  per  diem  wages  for  time  actually  employed  in  official  duties.  The 
tax-collector's  emolument  is  a  percentage. 

"For  school  purposes,  the  township  is  made  a  separate  and  distinct 

corporation,  with  the  legal  style,  '  Trustees  of  Schools  of  Township , 

Range ,'  according  to  the  number  by  which  the  township  is  desig- 
nated in  the  Congressional  Survey.  The  school  trustees,  three  in  num- 
ber, are  usually  elected  with  the  officers  of  the  civil  township  at  town 
meetings,  and  hold  office  for  three  years.  They  organize  by  choosing  one 
of  their  number  president,  and  by  selecting  some  fourth  person  for  school 
treasurer,  who  shall  also  be,  ex  officio,  their  secretary.  They  have 
authority  to  divide  the  township  into  school  districts.  It  must  be  remem- 
bered that  the  township  is  exactly  six  miles  square.  It  is  the  custom  to 
divide  it  into  nine  districts,  two  miles  square,  and  to  erect  a  schoolhouse 
near  the  centre  of  each.  As  the  county  roads  are,  in  most  instances, 
constructed  on  the  section  lines  —  and  therefore  run  north  and  south,  east 
and  west,  at  intervals  of  a  mile  —  the  traveller  expects  to  find  a  school- 
house  at  every  alternate  crossing.  The  people  who  live  in  these  sub- 
districts  elect  three  school  directors,  who  control  the  school  in  their 
neighbourhood.  They  are  obliged  to  maintain  a  free  school  for  not  less 
than  five  nor  more  than  nine  months  in  every  year,  are  empowered  to 
build  and  furnish  schoolhouses,  hire  teachers  and  fix  their  salaries,  and 
determine  what  studies  shall  be  taught.  They  may  levy  taxes  on  all  the 
taxable  property  in  their  district,  but  are  forbidden  to  exceed  a  rate  of 
two  per  cent  for  educational  or  three  per  cent  for  building  purposes. 
They  certify  to  the  township  school  treasurer  the  amount  they  requii-e, 
and  it  is  collected  as  hereafter  described.  This  last-named  officer  holds 
all  school  funds  belonging  to  the  township,  and  pays  out  on  the  order  of 
the  directors  of  the  several  districts. 

"  The  township  funds  for  the  support  of  schools  arise  from  three 
sources.  (1)  The  proceeds  of  the  school  lands  given  by  the  United  States 
Government,  the  interest  from  which  alone  may  be  expended.  (2)  The 
State  annually  levies  on  all  property  a  tax  of  one-fifth  of  one  per  cent, 
which  constitutes  a  State  school  fund,  and  is  divided  among  the  counties 
in  the  ratio  of  their  school  population,  and  is  further  distributed  among 
the  townships  in  the  same  ratio.  (3)  Any  amount  needed  in  addition  to 
tliese  sums  is  raised  by  taxation  in  the  districts  under  authority  of  the 
directors. 

"All  persons  between  the  ages  of  six  and  twenty -one  years  are  entitled 
to  free  school  privileges.  Women  are  eligible  to  every  school  office  in  the 
State,  and  are  frequently  chosen  directors.  The  average  Illinois  county 
contains  sixteen  townships.  The  county  government  is  established  at 
some  place  designated  by  the  voters,  and  called  the  '  county  seat.'  The 
corporate  powers  of  the  county  are  exercised  by  the  county  board,  which, 
in  counties  under  township  organization,  is  composed  of  the  several  town 
supervisors,  while  in  other  counties  it  consists  of  three  commissioners 
elected  by  the  people  of  the  whole  county.    The  board  manage  all  county 


604  THE   STATE   GOVERNMENTS  part  ii 

property,  funds,  and  business  ;  erect  a  court-house,  jail,  poorhouse,  and 
any  necessary  buildings  ;  levy  county  taxes,  audit  all  accounts  and  claims 
against  the  county,  and,  in  counties  not  under  township  organization,  have 
general  oversight  of  highways  and  paupers.  Even  in  counties  which  have 
given  the  care  of  highways  to  the  townships,  the  county  boai'd  may  appro- 
priate funds  to  aid  in  constructing  the  more  important  roads  and  expen- 
sive bridges.  The  treasurer,  sheriff,  i  coroner,  and  surveyor  are  county 
functionaries.  2 

"  The  county  superintendent  of  schools  has  oversight  of  all  educational 
matters,  advises  town  trustees  and  district  directors,  and  collects  com- 
plete school  statistics,  which  he  reports  to  the  comity  board,  and  trans- 
mits to  the  State  superintendent  of  public  instruction. 

"Every  county  elects  a  judge,  who  has  full  probate  jurisdiction,  and 
appoints  administrators  and  guardit,ns.  He  also  has  jurisdiction  in  civil 
suits  at  law,  involving  not  more  than  §1000,  in  such  minor  criminal  cases 
as  are  cognizable  by  a  justice  of  the  peace,  and  may  entertain  appeals 
from  justices  or  police  courts.  The  State  is  divided  into  thirteen  judicial 
districts,  in  each  of  which  the  people  elect  three  judges,  who  constitute  a 
circuit  court.  The  tribunal  holds  two  or  more  sessions  annually  in  each 
county  within  the  circuit,  and  is  attended  at  every  term  by  a  grand  or 
petit  jury.  It  has  a  general  original  jurisdiction,  and  hears  appeals  from 
the  county  judge  and  from  justices'  courts. 

"To  complete  the  judicial  system  of  the  State  there  are  four  appellate 
courts  and  one  supreme  court  of  last  resort.  Taxes  whether  for  State, 
county,  or  town  purposes  are  computed  on  the  basis  of  the  assessment 
made  by  the  town  assessor,  and  are  collected  by  the  town  collector. 
The  assessor  views  and  values  all  real  estate,  and  requires  from  all 
persons  a  true  list  of  their  personal  property.  The  assessor,  clerk,  and 
supervisor  constitute  a  town  equalizing  board,  to  hear  complaints  and 
to  adjust  and  correct  the  assessment. 

' '  The  assessors'  books  from  all  the  towns  then  go  before  the  county 
board,  who  make  such  corrections  as  cause  valuations  in  one  town  to 
bear  just  relation  to  valuations  in  the  others.  The  county  clerk  trans- 
mits an  abstract  of  the  corrected  assessment  to  the  auditor  of  the  State, 
who  places  it  in  the  hands  of  a  State  board  of  equalization. 

"This  board  adjusts  valuations  between  counties.  All  taxes  are  esti- 
mated and  collected  on  this  finally  corrected  assessment.  The  State 
authorities,  the  county  board,  the  town  supervisors,  the  highway  com- 
missioners, the  township  school  trustees,  and  the  proper  officers  of  incor- 
porated cities  and  villages,  all  certify  to  the  county  clerk  a  statement  of 
the  amount  they  require  for  their  several  purposes.  The  clerk  prepares 
a  collection-book  for  each  town  explaining  therein  the  sum  to  be  raised 
for  each  purpose.     Having  collected  the  total  amount  the  collector  dis- 

1  The  sheriff  is  the  executive  officer  of  the  higher  courts,  with  responsibility 
for  the  peace  of  the  county.    In  case  of  riot  he  may  call  out  the  county  militia. 

2  Ordinary  police  work,  other  than  judicial,  is  not  a  county  matter,  but  left 
to  the  township  with  its  coustables. 


CHAP.  XLviii  LOCAL   GOVERNMENT  605 

burses  to  each  proper  authority  its  respective  quota.  In  all  elections, 
whether  for  President  of  the  United  States,  representatives  in  Congress, 
State  officers  or  county  officers,  the  township  constitutes  an  election 
precinct,  and  tlie  supervisor,  assessor,  and  collector  sit  as  the  election 
judges. 

"The  words  'town'  and  'township'  signify  a  territorial  division  of 
the  county,  incorporated  for  purposes  of  local  government.  There 
remains  to  be  mentioned  a  very  numerous  class  of  municipal  corporations 
known  in  Illinois  statutes  as  'villages'  and  'cities.'  A  minimum  popu- 
lation of  three  hundred,  occupying  not  more  than  two  square  miles  in 
extent,  may  by  popu.lar  vote  become  incorporated  as  a  'village,'  under 
provisions  of  the  general  law.  Six  village  trustees  are  chosen,  and  they 
make  one  of  their  number  president,  thereby  conferring  on  him  the  gen- 
eral duties  of  a  mayor.  At  their  discretion  the  trustees  appoint  a  clerk, 
a  treasurer,  a  street  commissioner,  a  village  constable,  and  other  officers 
as  they  deem  necessary.  The  people  may  elect  a  police  magistrate,  whose 
jurisdiction  is  equal  to  that  of  a  justice  of  the  peace."  ^ 

A  similar  picture  of  the  town  meeting  in  Michigan  is  given 
by  another  recent  authority :  — 

"The  first  Monday  in  April  of  each  year  every  citizen  of  the  United 
States  twenty-one  years  of  age  and  upwards  who  has  resided  in  the  State 
six  months,  and  in  the  township  the  ten  days  preceding,  has  the  right  of 
attending  and  participating  in  the  meeting.  The  supervisor,  the  chief 
executive  officer  of  the  township,  presides.  He  and  the  justice  of  the 
peace  whose  term  of  office  soonest  expires,  and  the  township  clerk,  con- 
stitute the  inspectors  of  election.  After  the  choice  of  officers  for  the 
ensuing  year  the  electors  proceed  from  twelve  to  one,  or  three,  as  the 
case  may  require,  to  the  discussion  of  town  business.  Complaint  is  per- 
haps made  that  the  cattle  in  a  certain  part  of  the  township  are  doing 
damage  by  running  at  large,  a  bye-law  is  passed  forbidding  the  same 
under  penalty  not  exceeding  ten  dollars. 

"  A  bridge  may  be  wanted  in  another  part  of  the  tow^iship,  but  the  in- 
habitants of  that  road  district  cannot  bear  the  expense  ;  the  town  meeting 
votes  the  necessary  amount  not  exceeding  the  limits  of  law,  for  the 
laws  restricting  the  amount  of  taxation  and  indebtedness  are  very  par- 
ticular in  their  provisions. 

"The  electors  may  regulate  the  keeping  and  sale  of  gunpowder,  the 
licensing  of  dogs  and  the  maintenance  of  hospitals,  and  may  order  the 
vaccination  of  all  inhabitants.  The  voters  in  town  meeting  are  also  to 
decide  how  much  of  the  one-mil  tax  on  every  dollar  of  the  valuation  shall 
be  applied  to  the  purchase  of  books  for  the  township  library,  the  residue 
going  to  schools. 

"The  annual  reports  of  the  various  township  officers  charged  with  the 

1  "  Local  Government  in  Illinois,"  by  Albert  Shaw,  LL.D.,  in  J.  H.  U.  Stud- 
ies, Baltimore,  1883. 


606  THE   STATE   GOVERNMENTS  part  ii 

disbursement  of  public  moneys  are  also  submitted  at  this  time.  In  short, 
whatever  is  local  in  character  and  affecting  the  township  only  is  subject 
to  the  control  of  the  people  assembled  in  town  meeting. 

"  Yet  we  may  notice  some  minor  differences  between  the  New  England 
town  meeting  and  its  sister  in  Michigan.  In  the  latter  the  bye-laws  and 
regulations  are  less  varied  in  character. 

"This  is  due  to  the  fact  that  in  the  West  that  part  of  the  township 
where  the  inhabitants  are  most  numerous,  the  village,  and  for  whose 
regulation  many  laws  are  necessary,  is  set  off  as  an  incorporated  village, 
just  as  in  nearly  all  tlie  central  and  western  States.  These  villages  have 
the  privilege,  either  directly  in  village  meeting  or  more  often  through  a 
council  of  five  or  more  trustees,  of  managing  their  own  local  affairs,  their 
police,  fire  department,  streets  and  waterworks.  In  some  States,  how- 
ever, they  are  considered  parts  of  the  township,  and  as  such  vote  in  town 
meeting  on  all  questions  touching  township  i-oads,  bridges,  the  poor  and 
schools."  ^ 

The  conspicuous  feature  of  this  system  is  the  reappearance 
of  the  Xew  England  Town  meeting,  though  in  a  somewhat 
less  primitive  and  at  the  same  time  less  perfect  form,  because 
the  township  of  the  West  is  a  more  artificial  organism  than 
the  rural  Town  of  Massachusetts  or  Ehode  Island,  where, 
until  lately,  everybody  was  of  English  blood,  everybody  knew 
everybody  else,  everybody  was  educated  not  only  in  book 
learning,  but  in  the  traditions  of  self-government.  However, 
such  as  it  is,  the  Illinois  and  Michigan  system  is  spreading. 
Recent  legislation  in  California,  Nebraska,  and  other  western 
States  permits  its  adoption.  It  is  already  established  in  the 
two  Dakotas,  and  seems  destined  to  prevail  over  the  whole 
North-West.2 

In  proportion  to  the  extent  in  which  a  State  has  adopted 
the  township  system  the  county  has  tended  to  decline  in  im- 
portance. It  is  nevertheless  of  more  consequence  in  the  West 
than  in  New  England.  It  has  frequently  an  educational  offi- 
cial who  inspects  the  schools,  and  it  raises  a  tax  for  aiding 
schools  in  the  poorer  townships.     It  has  duties,  which  are 

1  "Local  Government  in  Michigan,"  by  E.  W.  Bemis,  iu  J.  H.  U.  Studies, 
Baltimore,  1883. 

2  In  Switzerland  the  rural  Gemeinde  or  Commune  is  the  basis  of  the  whole 
self-governing  system  of  the  Canton.  It  has  charge  of  the  police,  the  poor,  and 
schools,  and  owns  lands.  It  has  a  primary  assembly,  meeting  several  times  a 
year,  which  discusses  communal  business  and  elects  an  administrative  council. 
It  resembles  in  these  respects  an  American  Town  or  Township,  but  is  subject 
for  some  purposes  to  the  jurisdiction  of  an  official  called  the  Statthalter,  ap- 
pointed by  the  Canton  for  a  district  comprising  a  number  of  communes. 


CHAP.  xLViii  LOCAL   GOVERNMENT  607 

naturally  more  important  in  a  new  than  in  an  old  State,  of  lay- 
ing out  main  roads  and  erecting  bridges  and  other  public 
works.  And  sometimes  it  has  the  oversight  of  township  ex- 
penditure.^ The  board  of  county  commissioners  consists  in 
Michigan  and  Illinois  of  the  supervisors  of  all  the  townships 
within  the  county ;  in  Wisconsin  and  Minnesota  the  commis- 
sioners are  directly  chosen  at  a  county  election. 

I  pass  to  the  mixed  or  compromise  system  as  it  appears 
in  the  other  group  of  States,  of  which  Pennsylvania,  Ohio, 
Indiana,  and  Iowa  may  be  taken  as  samples.  In  these  States 
we  find  no  Town  meeting.  Their  township  may  have  greater 
or  less  power,  but  its  members  do  not  come  together  in  a  pri- 
mary assembly ;  it  elects  its  local  officers,  and  acts  only 
through  and  by  them.  In  Ohio  there  are  three  township 
trustees  with  the  entire  charge  of  local  affairs,  a  clerk  and  a 
treasurer.  In  Pennsylvania  the  township  is  governed  by  two 
or  three  supervisors,  elected  for  three  years,  one  each  year, 
together  with  an  assessor  (for  valuation  purposes),  a  town 
clerk,  three  auditors,  six  school  directors,  elected  for  three 
years,  two  each  year;  and  (where  the  poor  are  a  township 
charge)  two  overseers  of  the  poor.  The  supervisors  may  lay 
a  rate  on  the  township  not  exceeding  one  per  cent  on  the  val- 
uation of  the  property  within  its  limits  for  the  repair  of  roads, 
highways,  and  bridges,  and  the  overseers  of  the  poor  maj^, 
with  the  consent  of  two  justices,^  le^^  a  similar  tax  for  the 
poor.  But  as  the  poor  are  usually  a  county  charge,  and  as  any 
ratepayer  may  work  out  his  road  tax  in  labour,  township  rates 
amount  to  very  little. 

1  Mr.  Beniis  says :  —  "  Inasmuch  as  many  of  the  thousand  or  more  townships 
of  a  State  lack  the  political  education  and  conservatism  necessary  for  perfect 
self-control,  since  also  many  through  lack  of  means  cannot  raise  sutiicient 
money  for  roads,  bridges,  schools,  and  the  poor,  a  higher  authority  is  needed, 
with  the  power  of  equalizing  the  valuation  of  several  contiguous  tomis,  of  tax- 
ing the  whole  number  for  the  benefit  of  the  poorer,  and  of  exercising  a  general 
oversight  over  township  expenses.  .  .  .  AH  educators  earnestly  advocate 
county  and  State  control  of  schools,  that  there  may  be  uniformity  of  methods, 
and  that  the  country  districts,  the  nurseries  of  our  great  men  in  the  past,  may 
not  degenerate.  But  two  influences  oppose :  the  fear  of  centralization  on  the 
part  of  the  small  towns  which  need  it  most,  and  the  dislike  of  tlie  rich  cities 
to  tax  themselves  for  the  country  districts." — "Local  Government  in  Michi- 
gan," tit  supra,  p.  18. 

2  Justices  are  elected  by  the  people  for  five  years,  and  commissioned  by  the 
governor  of  the  State. 


608  THE   STATE   GOVERNMENTS  part  ii 

"  In  Iowa,"  says  Mr.  Macy,  "the  civil  township,  which  is  usually  six 
miles  square,  is  a  local  government  for  holding  elections,  repairing  roads, 
testing  property,  giving  relief  to  the  poor,  and  other  business  of  local  in- 
terest. Its  officers  are  three  trustees,  one  clerk,  a  road  supervisor  for 
each  road  district,  one  assessor,  two  or  more  justices  of  the  peace,  and 
two  or  more  constables.  The  justices  and  constables  are  in  a  sense 
county  officers.  Yet  they  are  elected  by  townships,  and  if  they  remove 
from  the  township  in  which  they  are  chosen,  they  cease  to  be  officers. 
The  trustees  are  chosen  for  three  years,  but  their  terms  of  office  are  so 
arranged  that  one  is  chosen  each  year.  The  other  officers  are  chosen  for 
two  years.  If  there  is  within  the  limits  of  the  township  an  incorporated 
town  or  city,  the  law  requires  that  at  least  one  of  the  justices  shall  live 
within  the  town  or  city.  The  voters  within  the  town  or  city  choose  a 
separate  assessor.  The  voters  of.  the  city  are  not  allowed  to  vote  for  road 
supervisors  nor  for  the  township  assessor ;  they  vote  for  all  other  town- 
ship officers.  .  .  . 

"The  trustees  of  the  township  have  various  duties  in  the  administra- 
tion of  the  poor  laws.  An  able-bodied  person  applying  for  aid  may  be 
required  to  work  upon  the  streets  or  highways.  If  a  person  who  has 
acquired  a  legal  settlement  in  the  county,  and  who  has  no  near  relatives  able 
to  support  him,  applies  to  the  trustees  for  aid,  it  is  their  duty  to  look  into 
the  case  and  furnish  or  refuse  relief.  If  they  decide  to  furnish  it,  they 
may  do  so  by  sending  the  person  to  the  county  poorhouse,  or  by  giving 
him  what  they  think  needful  in  food,  clothing,  medical  attendance,  or 
money.  If  they  refuse  aid  the  applicant  may  go  to  the  county  super- 
visors, and  they  may  order  the  trustees  to  furnish  aid  ;  or  if  the  supervi- 
sors think  the  trustees  are  giving  aid  unwisely  they  may  order  them  to 
withhold  it.  In  all  cases  where  aid  is  furnished  directly  by  the  trustees 
to  the  applicant  they  are  required  to  send  a  statement  of  the  expense  in- 
curred to  the  auditor  of  the  county,  who  presents  the  bills  to  the  board 
of  supervisors.  All  bills  for  the  relief  of  the  poor  are  paid  by  the  county, 
and  the  supervisors  if  they  choose  may  take  the  entire  business  out  of  the 
hands  of  the  trustees.  But  in  counties  where  no  poorhouse  is  provided, 
and  where  the  supervisors  make  no  provision  for  the  poor,  the  trustees 
are  required  to  take  entire  charge  of  the  business.  Yet  in  any  case  the 
county  must  meet  the  expenses.  The  triLstees  are  the  health  officers  of 
the  township.  They  may  require  persons  to  be  vaccinated  ;  they  may  re- 
quire the  removal  of  filth  injurious  to  health ;  they  may  adopt  bye-laws 
for  preserving  the  health  of  the  community  and  enforce  them  by  fine  and 
imprisonment."  i 

In  most  of  these  States  the  county  overshadows  the  town- 
ship. Taking  Pennsylvania  as  an  example,  we  find  each 
county  governed  by  a  board  of  three  commissioners,  elected 
for  three  years,  upon  a  minority  vote  system,  the  elector  being 

1  A  Gorerntnejit  Text-Book  for  Iowa  Schools,  pp.  21-23. 


CHAP.  XLviii  LOCAL   GOVERNMENT  609 

allowed  to  vote  for  two  candidates  only.  Besides  these  there 
are  officers,  also  chosen  by  popular  vote  for  three  years,  viz.  a 
sheriff,  coroner,  prothonotary,  registrar  of  wills,  recorder  of 
deeds,  treasurer,  surveyor,  three  auditors,  clerk  of  the  court, 
district  attorney.  Some  of  these  officers  are  paid  by  fees, 
except  in  counties  whose  population  exceeds  50,000,  where  sal- 
aries are  usually  provided.  A  county  with  at  least  40,000  in- 
habitants is  a  judicial  district,  and  elects  its  judge  for  a  term  of 
ten  years.  No  new  county  is  to  contain  less  than  400  square 
miles  or  20,000  inhabitants.^  The  county,  besides  its  judicial 
business  and  the  management  of  the  prisons  incident  thereto, 
besides  its  duties  as  respects  highways  and  bridges,  has  educa- 
tional and  usually  also  poor-law  functions;  and  it  levies  its 
county  tax  and  the  State  taxes  through  a  collector  for  each 
township  whom  it  and  not  the  township  appoints.  It  audits 
the  accounts  of  townships,  and  has  other  rights  of  control  over 
these  minor  communities  exceeding  those  allowed  by  Michigan 
or  Illinois.  I  must  not  omit  to  remark  that  where  any  local 
area  is  not  governed  by  a  primary  assembly  of  all  its  citizens, 
as  in  those  States  where  there  is  no  Town  meeting,  and  in  all 
States  in  respect  to  counties,  a  method  is  frequently  provided 
for  taking  the  judgment  of  the  citizens  of  the  local  area,  be  it 
township  or  county,  by  popular  vote  at  the  polls  upon  a  specific 
question,  usually  the  borrowing  of  money  or  the  levying  of  a 
rate  beyond  the  regular  amount.  This  is  an  extension  to  local 
divisions  of  the  so-called  "  plebiscitary  "  or  referendum  method, 
whose  application  to  State  legislation  has  been  discussed  in  a 
preceding  chapter.^  It  seems  to  work  well,  for  by  providing 
an  exceptional  method  of  meeting  exceptional  cases,  it  enables 
the  ordinary  powers  of  executiv^e  officials,  whether  in  township 
or  county,  to  be  kept  within  narrow  limits. 

Want  of  space  has  compelled  me  to  omit  from  this  sketch 
many  details  which  might  interest  European  students  of  local 
government,  nor  can  I  attempt  to  indicate  the  relations  of  the 
rural  areas,  townships  and  counties,  to  the  incorporated  villages 

1  See  Constitution  of  Pennsylvania  of  1873,  Arts.  xiv.  xiii.  and  v. 

The  average  population  of  a  county  in  Pennsylvania  M-as,  in  1890,  78,000. 
There  are  sixty-seven. 

2  As  the  primary  meeting  is  in  England  dying  out  in  the  form  of  the  parish 
vestry,  so  the  plebiscitary  method  seems  to  be  coming  in  to  meet  the  now  more 
democratic  conditions  of  the  country.     See  Chapter  XXXIX.  ante. 

VOL.  I  2  K 


610  THE    STATE   GOVEllNMENTS  part  ii 

and  cities  which  lie  within  tlieir  compass  further  than  by  ob- 
serving that  cities,  even  the  smaller  ones,  are  usually  separated 
from  the  townships,  that  is  to  say,  the  township  government  is 
superseded  by  the  city  government,  while  cities  of  all  grades 
remain  members  of  the  counties,  bear  their  share  in  county 
taxation,  and  join  in  county  elections.  Often,  however,  the 
constitution  of  a  State  contains  special  provisions  to  meet  the 
case  of  a  city  so  large  as  practically  to  overshadow  or  absorb 
tlie  county,  as  Chicago  does  the  county  of  Cook,  and  Cincin- 
nati the  county  of  Hamilton,  and  sometimes  the  city  is  made 
a  county  by  itself.  Of  these  villages  and  other  minor  munici- 
palities there  are  various  formts  in  different  States.  Ohio,  for 
instance,  divides  her  municipal  corporations  into  (o)  cities,  of 
which  there  are  two  classes,  the  first  class  containing  three 
grades,  the  second  class  four  grades ;  {b)  villages,  also  with 
two  classes,  the  first  of  from  3000  to  5000  inhabitants,  the 
second  of  from  200  to  3000 ;  and  (c)  hamlets,  incorporated 
places  with  less  than  200  inhabitants.^  The  principles  which 
govern  these  organizations  are  generally  the  same ;  the  details 
are  infinite,  and  incapable  of  being  summarized  here.  Of  minor 
incorporated  bodies  therefore  I  say  no  more.  But  the  larger 
cities  furnish  a  wide  and  instructive  field  of  inquiry ;  and  to 
them  three  chapters  must  be  devoted. 

1  Ohio  Voters'  Manual,  Appendix  K.  Ohio  contained  in  1888:  Cities — 1 
first  class,  fii'st  grade,  1  first  class,  second  grade,  1  fii'st  class,  third  grade,  2 
second  class,  first  grade,  1  second  class,  second  grade,  i)  second  class,  third 
grade,  23  second  class,  fourth  grade ;  Villages  —  34  first  class,  395  second  class ; 
Hamlets  —  32,  besides  785  uuincorporate  places  or  towns. 


CHAPTER   XLIX 

OBSERVATIONS    ON    LOCAL    GOVERNMENT 

It  may  serve  to  clear  up  a  necessarily  intricate  description  if 
I  add  here  a  few  general  remarks  applicable  to  all,  or  nearly  all, 
of  the  various  systems  of  local  government  that  prevail  in  the 
several  States  of  the  Union. 

I.  Following  American  authorities,  I  have  treated  the  New 
England  type  or  system  as  a  distinct  one,  and  referred  the 
Korth-western  States  to  the  mixed  type.  But  the  European 
reader  may  perhaps  figure  the  three  systems  most  vividly  to 
his  mind  if  he  will  divide  the  Union  into  three  zones  —  North- 
ern, Middle,  and  Southern.  In  the  northern,  wliich,  beginning 
at  the  Bay  of  Fundy,  stretches  west  to  Puget  Sound,  he  will 
find  a  primary  assembly,  the  Town  or  township  meeting,  in 
preponderant  activity  as  the  unit  of  local  government.  In  the 
middle  zone,  stretching  from  New  York  to  California,  inclusive, 
along  the  fortieth  parallel  of  latitude,  he  will  find  the  town- 
ship dividing  with  the  county  the  interests  and  energy  of  the 
people.  In  some  States  of  this  zone  the  county  is  the  more 
important  organism  and  dwarfs  the  township;  in  some  the 
township  seems  to  be  gaining  on  the  county ;  but  all  are  alike 
in  this,  that  you  cannot  lose  sight  for  a  moment  of  either  the 
smaller  or  the  larger  area,  and  that  both  areas  are  governed  by 
elected  executive  officers.  The  third  zone  includes  all  the 
southern  States ;  in  which  the  county  is  the  predominant  or- 
ganism, though  here  and  there  school  districts  and  even  town- 
ships are  growing  in  significance. 

II.  Both  county  and  township  are,  like  nearly  everything 
else  in  America,  English  institutions  which  have  suffered  a 
sea  change.  "  The  Southern  county  is  an  attenuated  English 
shire  with  the  towns  left  out." '    The  Northern  township  is  an 

1  Professor  iMacy,  "Our  Government,"  an  admirable  elementary  sketch  for 
school  use  of  the  structure  and  functions  of  the  Federal  and  State  governments. 

611 


612  THE  STATE   GOVERNMENTS  part  ii 

English  seventeenth-century  parish,  in  which  age  the  English 
parish  was  still  in  full  working  order  as  a  civil  no  less  than 
an  ecclesiastical  organization,  holding  common  property,  and 
often  co-extensive  with  a  town.  The  Town  meeting  is  the 
English  vestry,  the  selectmen  are  the  churchwardens,  or  select 
vestrymen,  called  back  by  the  conditions  of  colonial  life  into 
an  activity  fuller  than  they  exerted  in  England  even  in  the 
seventeenth  century,  and  far  fuller  than  they  now  retain.^  In 
England  local  self-government,  except  as  regards  the  poor  law, 
tended  to  decay  in  the  smaller  (i.e.  parish  or  township)  areas ; 
the  greater  part  of  such  administration  as  these  latter  needed, 
fell  either  to  the  justices  in  petty  sessions  or  to  officials  ap- 
pointed by  the  county  or  by  the  central  government,  until  the 
legislation  of  the  present  century  began  to  create  new  and 
larger  districts,  especially  poor  law  and  sanitary  districts,  for 
local  administration.^  In  the  wider  English  area,  the  county, 
true  self-government  died  out  with  the  ancient  Shire  Moot, 
and  fell  into  the  hands  of  persons  (the  justices  assembled  in 
Quarter  Sessions)  nominated  by  the  Crown,  on  the  recommen- 
dation of  the  lord-lieutenant.  It  is  only  to-day  that  a  system 
of  elective  county  councils  has  been  created  by  statute.  In 
the  American  colonies  the  governor  filled  the  place  which  the 
Crown  held  in  England ;  but  even  in  colonial  days  there  was 
a  tendency  to  substitute  popular  election  for  gubernatorial 
nomination  ;  and  county  government,  obeying  the  universal 
impulse,  is  now  everywhere  democratic  in  form ;  though  in 
the  South,  while  slavery  and  the  plantation  system  lasted,  it 
was  practically  aristocratic  in  its  spirit  and  working. 

1  Few  things  in  Englisli  history  are  better  worth  stiidying,  or  have  exercised 
a  more  pervading  iuflnence  on  the  progress  of  events,  than  the  practical  disap- 
pearance from  rural  England  of  that  Conimuue  or  Gemeinde  which  has  re- 
mained so  potent  a  factor  in  the  economic  and  social  as  well  as  the  political 
life  of  France  and  Italy,  of  Germany  (including  Austrian  Germany)  and  of 
Switzerland.  If  Englishmen  were  half  as  active  in  the  study  of  their  own 
local  institutions  as  Americans  have  begun  to  be  in  that  of  theirs,  we  should 
have  had  a  copious  literature  upon  this  interesting  subject. 

2  However,  the  parish  constables  and  way-wardens  in  some  places  con- 
tinue to  be  elected  by  popular  vote ;  and  the  manor  courts  and  courts  leet 
were  semi-popular  institutions.  Even  now  the  parish  vestry  has  some  civil 
powers. 

In  counties  the  coroner  continued  to  be  elected  by  the  freeholders,  but  in 
A.D.  1888,  the  appointment  was  transferred  by  statute  to  the  newly-created 
county  councils. 


CHAP.  XLix    OBSERVATIONS  ON  LOCAL  GOVERNMENT  613 

III.  In  England  the  control  of  the  central  government  — 
that  is,  of  Parliament^ is  now  maintained  not  only  by  stat- 
utes defining  the  duties  and  limiting  the  powers  of  the  various 
local  bodies,  but  also  by  the  powers  vested  in  sundry  depart- 
ments of  the  executive,  the  Local  Government  Board,  Home 
Office,  and  Treasury,  of  disallowing  certain  acts  of  these 
bodies,  and  especially  of  supervising  their  expenditure  and 
checking  their  borrowing.  In  American  States  the  executive 
departments  have  no  similar  functions.  The  local  authorities 
are  restrained  partly  by  the  State  legislature,  whose  statutes 
of  course  bind  them,  but  still  more  effectively,  because  legis- 
latures are  not  always  to  be  trusted,  by  the  State  Constitu- 
tions. These  instruments  usually  —  the  more  recent  ones  I 
think  invariably  —  contain  provisions  limiting  the  amount 
which  a  county,  township,  village,  school  district,  or  other 
local  area  may  borrow,  and  often  also  the  amount  of  tax  it  may 
levy,  by  reference  to  the  valuation  of  the  property  contained 
within  its  limits.  Specimens  of  these  provisions  w411  be 
found  in  a  note  at  the  end  of  this  volume.  They  have  been 
found  valuable  in  checking  the  growth  of  local  indebtedness, 
which  had  become,  even  in  rural  districts,  a  serious  danger.^ 
The  total  local  debt  (less  sinking  fund)  was  in  1890 :  — 

Counties $145,048,045         (£29,000,000) 

School  districts  .        .         .        36,701,948  (7,340,000) 

Total       ....     $181,749,993        (£36,340,000) 


This  sum  bears  a  comparatively  small  proportion  to  the 
total  debt  of  the  several  States  and  of  the  cities,  which  was 
then  — 

States $228,997,389  (£45,799,000) 

Cities  over  4000  inhabitants      .       646,507,044  (129,300,000) 
Municipalities  under  4000  in- 
habitants       ....         77,955,416  (£15,590,000) 

Total       ....     $953,460,449  (£190,689,000) 


1  See  also  Chapter  XLIII.  on  "  State  Finance."  These  provisions  are  of 
course  applied  to  cities  also,  which  need  them  even  more.  They  vary  very 
much  in  their  details,  and  in  some  cases  a  special  popular  vote  is  allowed  to 
extend  the  limit. 


614  THE   STATE   GOVERNMENTS  pakt  n 

County  and  school  district  debts  declined  eight  per  cent  be- 
tween 1870  and  1880,  whereas  city  indebtedness  was  then 
rapidly  increasing.  Since  1880  all  three  have  risen,  though 
slowly,  except  as  regards  the  school  district  debt,  which  has 
doubled ;  State  debts  on  the  other  hand  have  fallen  about  twelve 
per  cent  in  the  same  decade. 

IV.  County  and  township  or  school  district  taxes  are  direct 
taxes,  there  being  no  octroi  in  America,  and  are  collected  along 
with  State  taxes  in  the  smallest  tax-gathering  area,  i.e.  the 
township,  where  townships  exist.  Local  rates  are  not,  how- 
ever, as  in  England,  levied  on  immovable  property  only,  but 
also  on  personal  property,  or  rather  upon  so  much  of  it  as  the 
assessors  can  reach.  Lands  and  houses  are  often  assessed  far 
below  their  true  value,  because  the  township  assessors  have  an 
interest  in  diminishing  the  share  of  the  county  tax  which  will 
fall  upon  their  township  similar  to  the  interest  of  the  county 
assessors  in  diminishing  the  share  of  the  State  tax  to  be  borne 
by  their  county.^  Real  property  is  taxed  in  the  place  where  it  is 
situate ;  personalty  only  in  the  place  where  the  owner  resides.^ 
But  the  suffrage,  in  local  as  well  as  in  State  and  National  elec- 
tions, is  irrespective  of  property,  and  no  citizen  can  vote  in 
more  than  one  place.  A  man  may  have  a  dozen  houses  or  farms 
in  as  many  cities,  counties,  or  townships :  he  will  •  vote,  even 
for  local  purposes,  only  in  the  spot  where  he  is  held  to  reside. 

The  great  bulk  of  local  expenditure  is  borne  by  local  taxes. 
But  in  some  States  a  portion  of  the  county  taxes  is  allotted  to 
the  aid  of  school  districts,  so  as  to  make  the  wealthier  districts 
relieve  the  burden  of  the  poorer,  and  often  a  similar  subvention 
is  made  from  State  revenues.  The  public  schools,  which  are 
everywhere  and  in  all  grades  gratuitous,  absorb  a  considerable 
part  of  the  whole  revenue  locally  raised,^  and  in  addition  to 
what  taxation  provides  they  receive  a  large  revenue  from  the 
lands  which,  under  Federal  or  State  legislation,  have  been  set 

1  As  to  this  and  the  Boards  of  Equalization  see  Chapter  XLIII.  ante. 

2  Of  course  what  is  really  the  same  proi^erty  may  be  taxed  in  more  than  one 
place,  e.rj.  a  mining  company  may  be  taxed  as  a  company  in  Montana,  and  the 
shares  held  by  individual  proprietors  be  possibly  also  taxed  in  the  several 
States  in  which  tliese  shareholders  reside. 

2  The  expenditure  on  public  elementary  schools  in  the  United  States  is  stated 
by  the  U.  S.  Commissioner  of  Education  {Report  for  1888-89)  at  $121,930,000 
(£24,386,000),  public  secondary  schools,  $10,199,000;  total,  Sil32,129,000. 


CHAP.  XLix     OBSERVATIONS  ON  LOCAL  GOVERNMENT  615 

apart  for  educational  purposes.^  On  the  whole,  the  burden  of 
taxation  in  rural  districts  is  not  heavy,  nor  is  the  expenditure 
often  wasteful,  because  the  inhabitants,  especially  under  the 
Town  meeting  system,  look  closely  after  it.^ 

V.  It  is  noteworthy  that  the  Americans,  who  are  supposed 
to  be  especially  fond  of  representative  assemblies,  have  made 
little  use  of  representation  in  their  local  government.  The 
township  is  usually  governed  either  by  a  primary  assembly  of 
all  citizens  or  else,  as  in  such  States  as  Ohio  and  Iowa,  b}''  a 
very  small  board,  not  exceeding  three,  with,  in  both  sets  of 
cases,  several  purely  executive  officers.^  In  the  county  there 
is  seldom  or  never  a  county  board  possessing  legislative  func- 
tions (though  New  York  has  begun  to  tend  that  way);  iTSually 
only  three  commissioners  or  supervisors  with  some  few  execu- 
tive or  judicial  officers.  Local  legislation  (except  as  it  appears 
in  the  bye-laws  of  the  Town  meeting  or  selectmen)  is  discour- 
aged. The  people  seem  jealous  of  their  county  officials,  elect- 
ing them  for  short  terms,  and  restricting  each  to  a  special 
range  of  duties.  This  is  perhaps  only  another  way  of  saying 
that  the  county,  even  in  the  South,  has  continued  to  be  an 
artificial  entity,  and  has  drawn  to  itself  no  great  part  of  the 
interest  and  affections  of  the  citizens.  Over  five-sixths  of  the 
Union  each  county  presents  a  square  figure  on  the  map,  with 
nothing  distinctive  about  it,  nothing  "natural"  about  it,  in 
the  sense  in  which  such  English  counties  as  Kent  or  Cornwall 
are  natural  entities.  It  is  too  large  for  the  personal  interest 
of  the  citizens  :  that  goes  to  the  township.  It  is  too  small  to 
have  traditions  which  command  the  respect  or  touch  the  affec- 
tions of  its  inhabitants  :  these  belong  to  the  State.* 

1  Students  of  ecouomic  science  will  hear  without  surprise  that  in  some  of 
the  States  which  have  the  largest  permanent  school  fund  the  effect  on  the  effi- 
ciency of  the  schools,  and  on  the  interest  of  the  people  in  them,  has  been  per- 
nicious. In  education,  as  well  as  in  eleemosynary  and  ecclesiastical  matters, 
endowments  would  seem  to  he  a  very  doubtful  benefit. 

2  Expenditure  has  however  greatly  risen.  In  the  Massachusetts  town  of 
Quincy,  for  instance,  tlic  average  annual  levy  of  taxation  between  17'.)2  and 
1800  was  $1000,  about  $1  to  each  inhabitant  taxpayer:  it  is  now  S12.57.  In 
1792  the  education  of  each  child  in  the  public  school  cost  $'^  per  annum :  now 
it  costs  $16  {The  Centennial  Milestone,  by  Charles  F.  Adams). 

3  In  a  few  Western  States  the  Town  board  has  (like  the  New  P^ngland 
selectmen)  a  limited  taxing  power,  as  well  as  administrative  duties. 

4  In  Virginia  tliere  used  to  be  a  county  feeling  resembling  tliat  of  England, 
but  this  has  vanished  in  the  social  revolution  that  has  transformed  the  South. 


(516  THE   STATE   GOVERNMENTS  part  ii 

VI.  The  chief  functions  local  government  has  to  discharge  in 
the  United  States  may  be  summarized  in  a  few  paragraphs  :  — 

Making  and  repairing  roads  and  bridges.  —  These  prime  ne- 
cessities of  rural  life  are  provided  for  by  the  township,  county, 
or  State,  according  to  the  class  to  which  a  road  or  bridge  be- 
longs. That  the  roads  of  America  are  proverbially  ill-built 
and  ill-kept  is  due  partly  to  the  climate,  with  its  alternations 
of  severe  frost,  occasional  torrential  rains  (in  the  middle  and 
southern  States),  and  long  droughts;  partly  to  the  hasty  hab- 
its of  the  people,  who  are  too  busy  with  other  things,  and  too' 
eager  to  use  their  capital  in  private  enterprises  to  be  willing 
to  spend  freely  on  highways ;  partly  also  to  the  thinness 
of  population,  which  is,  except  in  a  few  manufacturing  dis- 
tricts, much  less  dense  than  in  western  Europe.  In  many 
districts  railways  have  come  before  roads,  so  roads  have  been 
the  less  used  and  cared  for. 

The  administration  of  justice  was  one  of  the  first  needs 
which  caused  the  formation  of  the  county :  and  matters  con- 
nected with  it  still  form  a  large  part  of  county  business.  The 
voters  elect  a  judge  or  judges,  and  the  local  prosecuting  offi- 
cer, called  the  district  attorney,  and  the  chief  executive  officer, 
the  sheriif.^  Prisons  are  a  matter  of  county  concern.  Police 
is  always  locally  regulated,  but  in  the  northern  States  more 
usually  by  the  township  than  by  the  county.  However,  this 
branch  of  government,  so  momentous  in  continental  Europe, 
is  in  America  comparatively  unimportant  outside  the  cities. 
The  rural  districts  get  on  nearly  everywhere  with  no  guardians 
of  the  peace,  beyond  the  township  constable ;  ^  nor  does  the 
State  government,  except,  of  course,  through  statutes,  exercise 
any  control  over  local  police  administration.^  In  the  rural  parts 
of  the  eastern  and  middle  States  property  is  as  safe  as  any- 
where in  the  world.  In  such  parts  of  the  West  as  are  disturbed 
by  dacoits,  or  by  solitary  highwaymen,  travellers  defend  them- 
selves, and,  if  the  sheriff  is  distant  or  slack,  lynch  law  may 
usefully  be  invoked.     The  care  of  the  poor  is  thrown  almost 

1  Tlie  American  sheriff  remains  something  like  what  the  English  sheriff  was 
before  his  wings  were  clipped  by  legislation  some  seventy  years  ago.  Even 
then,  however,  he  mostly  acted  by  deputy.  The  justices  and  the  county  police 
have  since  that  legislation  largely  superseded  his  action. 

2  Or,  in  States  with  no  townships,  some  corresponding  officer. 
2  As  to  recent  experiments,  see  p.  495  ante,  State  police. 


CHAP.  XLix     OBSERVATIONS  ON  LOCAL  GOVERNMENT  617 

everywhere  upon  local  and  not  upon  State  authorities/  and 
defrayed  out  of  local  funds,  sometimes  by  the  county,  some- 
times by  the  township.  The  poor  laws  of  the  several  States 
differ  in  so  many  particulars  that  it  is  impossible  to  give  even 
an  outline  of  them  here.  Little  out-door  relief  is  given,  though 
in  most  States  the  relieving  authority  may,  at  his  or  their  dis- 
cretion, bestow  it ;  and  pauperism  is  not,  and  has  never  been,  a 
serious  malady,  except  in  some  five  or  six  great  cities,  where 
it  is  now  vigorously  combated  by  volunteer  organizations 
largely  composed  of  ladies.  The  total  number  of  persons  re- 
turned as  almshouse-paupers  in  the  whole  Union  in  1880  was 
73,045.  Adding  23,000  for  persons  in  receipt  of  out-door  re- 
lief, we  have  a  proportion  of  1  to  652  of  the  whole  population.^ 
In  England  and  Wales  in  1892  there  were  676,693  paupers 
(not  including  pauper  lunatics  53,000,  and  vagrants  7000)  to  a 
population  of  29,001,018,  or  1  to  42  of  population. 

Sanitation,  which  has  become  so  important  a  department  of 
English  local  administration,  plays  a  small  part  in  the  rural 
districts  of  America,  because  their  population  is  so  much  more 
thinly  spread  over  the  surface  that  the  need  for  drainage  and 
the  removal  of  nuisances  is  less  pressing;  moreover,  as  the 
humbler  classes  are  better  off,  unhealthy  dwellings  are  far 
less  common.  Public  health  officers  and  sanitary  inspectors 
would,  over  the  larger  part  of  the  county,  have  little  occu- 
pation.^ 

To  education,  I  can  refer  only  in  passing,  because  the  differ- 
ences between  the  arrangements  of  the  several  States  are  too 
numerous  to  be  described  here.  It  has  hitherto  been  not  only 
a  more  distinctively  local  matter,  but  one  relatively  far  more 
important  than  in  England,  France,  or  Italy.  And  there  is 
usually  a  special  administrative  body,  often  a  special  adminis- 
trative area,  created  for  its  purposes  —  the  school  committee 

1  In  some  States  there  are  poor-law  superintendents,  and  usually  State 
institutions  for  particular  classes  of  paupers,  e.ff.  pauper  lunatics. 

2  The  census  returns  of  ISSX)  (so  far  as  published)  do  not  give  the  number  of 
out-door  paupers,  but  so  far  as  can  be  gathered  from  the  (apparently  untrust- 
worthy) figures  of  1880,  it  is  less  than  one-third  of  that  of  in-door  paupers. 
The  figures  in  1880  were  67,0(57  to  21,598.  The  proportion  of  paupers  to 
population  in  England,  which,  in  1863,  was  4.97  to  1000,  was,  in  1892,  23.3  to 
1000. 

3  Sanitation,  however,  has  occupied  much  attention  in  the  cities.  Cleve- 
land claims  to  have  the  lowest  death  rate  of  any  large  city  in  the  world. 


618  THE   STATE   GOVERNMENTS  part  ii 

and  the  school  district.^  The  vast  sum  expended  on  public 
instruction  has  been  already  mentioned.  Though  primarily 
dealt  with  by  the  smallest  local  circumscription,  there  is  a 
growing  tendency  for  both  the  county  and  the  State  to  inter- 
est themselves  in  the  work  of  instruction  by  way  of  inspec- 
tion, and  to  some  extent  of  pecuniary  subventions.  Not  only 
does  the  county  often  appoint  a  county  superintendent,  but 
there  are  in  some  States  county  high  schools  and  (in  most) 
county  boards  of  education,  besides  a  State  Board  of  Commis- 
sioners.- I  need  hardly  add  that  the  schools  of  all  grades  are 
more  numerous  and  efficient  in  the  northern  and  western  than 
in  the  southern  States.  In  old  colonial  days,  when  the  Eng- 
lish Commissioners  for  Foreign  Plantations  asked  for  infor- 
mation on  the  subject  of  education  from  the  governors  of 
Virginia  and  Connecticut,  the  former  replied,  ''I  thank  God 
there  are  no  free  schools  or  printing  presses,  and  I  hope  we 
shall  not  have  any  these  hundred  years; "^  and  the  latter, 
"One-fourth  of  the  annual  revenue  of  the  colony  is  laid  out  in 
maintaining  free  schools  for  the  education  of  our  children." 
The  disparity  was  prolonged  and  intensified  in  the  South  by 
the  existence  of  slavery.  Now  that  slavery  has  gone,  the 
South  makes  rapid  advances ;  but  the  proportion  of  illiteracy, 
especially  of  course  among  the  negroes,  is  still  high.'* 

1  Though  the  school  district  frequently  coincides  with  the  township,  it  has 
generally  (outside  of  New  England)  distinct  administrative  officers,  and  when 
it  coincides  it  is  often  subdivided  into  lesser  districts. 

~  In  some  States  provision  is  made  for  the  combination  of  several  school 
districts  to  maintain  a  superior  school  at  a  central  spot. 

3  Governor  Sir  William  Berkeley,  however,  was  among  the  Virginians  who 
in  1()60  subscribed  for  the  erection  in  Virginia  of  "a  college  of  students  of  the 
liberal  arts  and  sciences."  As  to  elementary  instruction  he  said  that  Virginia 
pursued  "  the  same  course  that  is  taken  in  England  out  of  towns,  every  man 
according  to  his  ability  instructing  his  children.  We  have  forty-eight  parishes, 
and  our  ministry  are  well  paid,  and,  by  consent,  should  be  better  if  they  would 
pray  oftener  and  preach  less."— T/te  C(jllege  of  William  and  Mary,  by  Dr. 
H.  B.  Adams. 

*  The  percentage  of  persons  unable  to  read  to  the  whole  population  of  the 
United  States  was,  in  1880,  13.4;  it  was  lowest  in  Iowa  (2.4),  highest  in  South 
Carolina  (48.2)  and  Louisiana  (45.8).  The  percentage  of  persons  unable  to 
write  was  in  the  whole  United  States,  17 ;  lowest  in  Nebraska  (3.6),  highest  in 
Soutli  Carolina  (55.4)  and  Alaliama  (50.9) .  The  census  returns  of  1890  respect- 
ing illiteracy  have  not  yet  been  published  (December  1892). 

It  was  recently  proposed  in  Congress  to  reduce  the  surplus  in  the  U.  S. 
treasury  by  distributing  sums  among  the  States  in  aid  of  education,  in  propor- 
tion to  tlie  need  wliieh  exists  for  schools,  i.e.  to  tlieir  illiteracy.  The  objections 
on  the  score  of  economic  policy,  as  well  as  of  constitutional  law,  were  obvi- 
ous, and  stimulated  a  warm  resistance  to  the  bill. 


CHAP.  XLix     OBSERVATIONS  ON  LOCAL  GOVERNMENT  619 

It  will  be  observed  that  of  the  general  functions  of  local 
government  above  described,  three,  viz.  police,  sanitation,  and 
poor  relief,  are  simpler  and  less  costly  than  in  England,  and 
indeed  in  most  parts  of  western  and  central  Europe.  It  has 
therefore  proved  easier  to  vest  the  management  of  all  in  the 
same  local  authority,  and  to  get  on  with  a  smaller  number  of 
special  executive  officers.  Education  is  indeed  almost  the 
only  matter  which  has  been  deemed  to  demand  a  special  body  to 
handle  it.  Nevertheless,  even  in  America  the  increasing  com- 
plexity of  civilization,  and  the  growing  tendency  to  invoke 
governmental  aid  for  the  satisfaction  of  wants  not  previously 
felt,  or  if  felt,  met  by  voluntary  action,  tend  to  enlarge  the 
sphere  and  multiply  the  functions  of  local  government. 

VII.  How  far  has  the  spirit  of  political  party  permeated 
rural  local  government  ?  I  have  myself  asked  this  question  a 
hundred  times  in  travelling  through  America,  yet  I  find  it 
hard  to  give  any  general  answer,  because  there  are  great  diver- 
sities in  this  regard  not  only  between  different  States,  but 
between  different  parts  of  the  same  State,  diversities  due 
sometimes  to  the  character  of  the  population,  sometimes  to  the 
varying  intensity. of  party  feeling,  sometimes  to  the  greater  or 
less  degree  in  which  the  areas  of  local  government  coincide 
with  the  election  districts  in  which  State  senators  or  represent- 
atives are  chosen.  On  the  whole  it  would  seem  that  county 
officials  are  apt  to  be  chosen  on  political  lines,  not  so  much 
because  any  political  questions  come  before  them,  or  because 
they  can  exert  much  influence  on  State  or  Federal  elections, 
as  because  these  paid  offices  afford  a  means  of  rewarding  polit- 
ical services  and  securing  political  adhesions.  Each  of  the  great 
parties  usually  holds  its  county  convention  and  runs  its  "count}^ 
ticket,"  with  the  unfortunate  result  of  intruding  national  poli- 
tics into  matters  with  which  they  have  nothing  to  do,  and  of 
making  it  more  difficult  for  good  citizens  outside  the  class  of 
professional  politicians  to  find  their  way  into  county  administra- 
tion. However,  the  party  candidates  are  seldom  bad  men,  and 
the  ordinary  voter  is  less  apt  to  vote  blindly  for  the  party  nomi- 
nee than  he  would  be  in  Federal  or  State  elections.  In  the  town- 
ship and  rural  school  district  party  spirit  is  much  less  active. 
The  offices  are  often  unpaid,  and  the  personal  merits  of  the  can- 
didates are  better  known  to  the  voters  than  are  those  of  the 


1 


620  THE   STATE   GOVERNMENTS 


politicians  who  seek  for  county  office.^  Rings  and  Bosses  (of 
whom  more  anon)  are  not  unknown  even  in  rural  New  England. 
School  committee  elections  are  often  influenced  by  party  affilia- 
tions. But  on  the  whole,  the  township  and  its  government 
keep  themselves  pretty  generally  out  of  the  political  whirlpool : 
their  posts  are  filled  by  honest  and  reasonably  competent  men. 
VIII.  The  apparent  complexity  of  the  system  of  local  gov- 
ernment sketched  in  the  last  preceding  chapter  is  due  entirely 
to  the  variations  between  the  several  States.  In  each  State  it 
is,  as  compared  with  that  of  rural  England,  eminently  simple. 
There  are  few  local  divisions,  few  authorities;  the  divisions 
and  authorities  rarely  overlap.  No  third  local  area  and  local 
authority  intermediate  between  township  and  county,  and  simi- 
lar to  the  English  poor  law  Union  (or  District  with  its  pro- 
posed Council),  has  been  found  necessary.  Especially  simple 
is  the  method  of  levying  taxes.  In  most  States  a  citizen  pays 
at  the  same  time,  to  the  same  officer,  upon  the  same  paper  of 
demand,  all  his  local  taxes,  and  not  only  these,  but  also  his 
State  tax ;  in  fact,  all  the  direct  taxes  which  he  is  required  to 
pay.  The  State  is  spared  the  expense  of  maintaining  a  sepa- 
rate collecting  staff,  for  it  leans  upon  and  uses  the  local  officials 
who  do  the  purely  local  work.  The  tax-payer  has  not  the  worry 
of  repeated  calls  upon  his  cheque-book.^  Nor  is  this  simplicity 
and  activity  of  local  administration  due  to  its  undertaking 
fewer  duties,  as  compared  with  the  State,  than  is  the  case  in 
Europe.  On  the  contrary,  the  sphere  of  local  government  is 
in  America  unusually  wide,^  and  widest  in  what  may  be  called 
the  most  characteristically  American  and  democratic  regions. 
New  England  and  the  North-west.  Americans  often  reply  to 
the  criticisms  which  Europeans  pass  on  the  faults  of  their 
State  legislatures  and  the  shortcomings  of  Congress  by  pointing 
to  the  healthy  efficiency  of  their  rural  administration,  which 

1  Sometimes  the  party  "  ticket "  leaves  a  blank  space  for  the  voter  to  insert 
the  name  of  the  candidates  for  whom  he  votes  for  township  offices.  See  the 
specimen  Iowa  ticket  at  the  end  of  Chapter  LXVI. 

2  City  taxes,  however,  and  the  local  school-tax,  are  sometimes  paid  sepa- 
rately. Some  States  ^ive  the  option  of  paying  half-yearly  or  quarterly;  and 
many  allow  discount  upon  payment  in  advance. 

3  The  functions  are  not  perhaps  so  numerous  as  in  England,  but  this  is  be- 
cause fewer  functions  are  needed.  The  practical  competence  of  local  author- 
ities for  undertaking  any  new  functions  that  may  become  needed,  and  which 
the  State  may  entrust  to  them,  is  great. 


CHAP.  XLix     OBSERVATIONS  ON  LOCAL  GOVERNMENT  621 

enables  them  to  bear  with  composure  the  defects  of  tlie  higher 
organs  of  government,  defects  which  would  be  less  tolerable  in 
a  centralized  country,  where  the  national  government  deals 
directly  with  local  affairs,  or  where  local  authorities  await  an 
initiative  from  above. 

Of  the  three  or  four  types  or  systems  of  local  government 
which  I  have  described,  that  of  the  Town  or  township  with  its 
popidar  primary  assembly  is  admittedly  the  best.  It  is  the 
cheapest  and  the  most  efficient ;  it  is  the  most  educative  to  the 
citizens  who  bear  a  part  in  it.  The  Town  meeting  has  been 
not  only  the  source  but  the  school  of  democracy.^  The  action 
of  so  small  a  unit  needs,  however,  to  be  supplemented,  perhaps 
also  in  some  points  supervised,  by  that  of  the  county,  and  in 
this  respect  the  mixed  system  of  the  middle  States  is  deemed 
to  have  borne  its  part  in  the  creation  of  a  perfect  type.  For 
some  time  past  an  assimilative  process  has  been  going  on  over 
the  United  States  tending  to  the  evolution  of  such  a  type.^  In 
adopting  the  township  system  of  New  England,  the  north- 
western States  have  borrowed  some  of  the  attributes  of  the 
middle  States  county  system.  The  middle  States  have  devel- 
oped the  township  into  a  higher  vitality  than  it  formerly  pos- 
sessed there.  Some  of  the  southern  States  are  introducing  the 
township,  and  others  are  likely  to  follow  as  they  advance  in 
population  and  education.  It  is  possible  that  by  the  middle  of 
next  century  there  will  prevail  one  system,  uniform  in  its  out- 
lines over  the  whole  country,  with  the  township  for  its  basis, 
and  the  county  as  the  organ  called  to  deal  with  those  matters 
which,  while  they  are  too  large  for  township  management,  it 
seems  inexpedient  to  remit  to  the  unhealthy  atmosphere  of  a 
State  capital. 

1  In  Rhode  Island  it  was  the  Towns  that  made  the  State. 

2  This  tendency  is  visible  not  least  as  regards  the  systems  of  educational 
administration.  Tlie  National  Teachers'  Association  of  the  U.  S.  not  long 
since  prepared  an  elaborate  report  on  the  various  existing  systems,  and  the 
more  progressive  States  are  on  the  alert  to  profit  by  one  another's  experience. 


CHAPTEE,   L 

THE    GOVERNMENT    OF    CITIES 

The  growth  of  great  cities  has  been  among  the  most  signifi- 
cant and  least  fortunate  changes  in  the  character  of  the  popu- 
lation of  the  United  States  during  the  century  that  has  passed 
since  1787.  The  census  of  1790  showed  only  six  cities  with 
more  than  8000,  and  only  one  with  more  than  40,000  inhabi- 
tants. In  1880  there  were  286  exceeding  8000,  forty  exceeding 
40,000,  twenty  exceeding  100,000;  while  the  census  of  1890 
showed  443  exceeding  8000,  74  exceeding  40,000,  28  exceeding 
100,000.  The  ratio  of  persons  living  in  cities  exceeding  8000 
inhabitants  to  the  total  population  was,  in  1790,  3.35  per  cent, 
in  1840,  8.52,  in  1880,  22.57,  in  1890,  29.12.  And  this  change 
has  gone  on  with  accelerated  speed  notwithstanding  the  enor- 
mous extension  of  settlement  over  the  vast  regions  of  the 
West.  Needless  to  say  that  a  still  larger  and  increasing  pro- 
portion of  the  wealth  of  the  country  is  gathered  into  the 
larger  cities.  Their  government  is  therefore  a  matter  of  high 
concern  to  America,  and  one  which  cannot  be  omitted  from  a 
discussion  of  transatlantic  politics.  Such  a  discussion  is,  how- 
ever, exposed  to  two  difficulties.  One  is  that  the  actual 
working  of  municipal  government  in  the  United  States  is  so 
inextricably  involved  with  the  party  system  that  it  is  hard  to 
understand  or  judge  it  without  a  comprehension  of  that  sys- 
tem, an  account  of  which  I  am,  nevertheless,  forced  to  reserve 
for  subsequent  chapters.  The  other  is  that  the  laws  which 
regulate  municipal  government  are  even  more  diverse  from  one 
another  than  those  whence  I  have  drawn  the  account  already 
given  of  State  governments  and  rural  local  government.  For 
not  only  has  each  State  its  own  system  of  laws  for  the  gov- 
ernment of  cities,  but  within  a  State  there  is,  as  regards  the 
cities,  little  uniformity  in  municipal  arrangements.     Larger 

622 


CHAP.  L  THE   GOVERNMENT   OF   CITIES  623 

cities  are  often  governed  differently  from  the  smaller  ones ; 
and  one  large  city  is  differently  organized  from  another.  So 
far  as  the  legal  arrangements  go,  no  general  description,  such 
as  might  be  given  of  English  municipal  governments  under  the 
Municipal  Corporation  Acts,  is  possible  in  America.  I  am 
therefore  obliged  to  confine  myself  to  a  few  features  cojnmon 
to  most  city  governments  occasionally  taking  illustrations  from 
the  constitution  or  history  of  some  one  or  other  of  the  leading 
municipalities. 

The  history  of  American  cities,  though  striking  and  instruc- 
tive, has  been  short.  Of  the  ten  greatest  cities  of  to-day  only 
four  —  Baltimore,  New  Orleans,  New  York,  and  Philadelphia 
—  were  municipal  corporations  in  1820.^  Every  city  has  re- 
ceived its  form  of  government  from  the  State  in  which  it 
stands,  and  this  form  has  been  repeatedly  modified.  Formerly 
each  city  obtained  a  special  charter ;  now  in  nearly  all  States 
there  are  general  laws  under  which  a  population  of  a  certain 
size  and  density  may  be  incorporated.  Yet,  as  observed  above, 
special  legislation  for  particular  cities,  especially  the  greater 
ones,  continues  to  be  very  frequent. 

Although  American  city  governments  have  a  general  resem- 
blance to  those  English  municipalities  which  were  their  first 
model,^  their  present  structure  shows  them  to  have  been  much 
influenced  by  that  of  the  State  governments.  We  find  in  all 
the  larger  cities  — 

A  mayor,  head  of  the  executive,  and  elected  directly  by  the 

voters  within  the  city. 
Certain  executive  officers  or  boards,  some  directly  elected  by 

the  city  voters,  others  nominated  by  the  mayor  or  chosen 

by  the  city  legislature. 
A  legislature,  consisting  usually  of  two,  but  sometimes  of 

one  chamber,  directly  elected  by  the  city  voters. 
Judges,  usually  elected  by  the  city  voters,  but  sometimes 

appointed  by  the  State. 
What  is  this  but  the  frame  of  a  State  government  applied  to 

1  The  term  "  city  "  denotes  in  America  what  is  called  in  England  a  munic- 
ipal borough,  and  has  nothing  to  do  with  either  size  or  antiquity.  The  con- 
stitution or  frame  of  government  of  a  city,  which  is  always  given  by  a  State 
statute,  general  or  special,  is  called  its  charter. 

2  American  municipalities  have,  of  course,  never  been,  since  the  Revolution, 
close  corporations  like  most  English  boroughs  before  the  Act  of  1835. 


624  THE   STATE   GOVERNMENTS  part  ii 

the  smaller  area  of  a  city  ?  The  mayor  corresponds  to  the 
Governor,  the  officers  or  boards  to  the  various  State  officials 
and  boards  (described  in  Chapter  XLI.)  elected,  in  most  cases, 
by  the  people ;  the  aldermen  and  common  council  (as  they  are 
generally  called)  to  the  State  Senate  and  Assembly ;  the  city 
elective  judiciary  to  the  State  elective  judiciary.^ 

A  few  words  on  each  of  these  municipal  authorities:  The 
mayor  is  by  far  the  most  conspicuous  figure  in  city  govern- 
ments, much  more  important  than  the  mayor  of  an  English  or 
Irish  borough,  or  the  provost  of  a  Scotch  one.  He  holds  office, 
sometimes  for  one  year,^  but  now  more  frequently  for  two,^ 
three,  or  even  five*  years.  In  some  cities  he  is  not  re-eligible. 
He  is  directly  elected  by  the  people  of  the  whole  city,  and  is 
usually  not  a  member  of  the  city  legislature.^  He  has,  almost 
everywhere,  a  veto  on  all  ordinances  passed  by  that  legislature, 
which,  however,  can  be  overridden  by  a  two-thirds  majority. 
In  many  cities  he  appoints  some  among  the  heads  of  depart- 
ments and  administrative  boards,  though  usually  the  approval 
of  the  legislature  or  of  one  branch  of  it "  is  required.  Quite 
recently  some  city  charters  have  gone  so  far  as  to  make  him 
generally  responsible  for  all  the  departments  (subject  to  the 
control  of  supply  by  the  legislative  body),  and  therewith  liable 
to  impeachment  for  misfeasance.  He  receives  a  considerable 
salary,  varying  with  the  size  of  the  city,  but  sometimes  reach- 
ing $10,000,  the  same  salary  as  that  allotted  to  the  justices 
of  the  Supreme  Federal  Court.  It  rests  with  him,  as  the  chief 
executive  officer,  to  provide  for  the  public  peace,  to  quell  riots, 
and,  if  necessary,  to  call  out  the  militia.^     He  often  exerts,  in 

1  American  municipal  governments  are  of  course  subject  to  three  general 
rules  :  that  they  have  no  powers  other  tlian  those  conferred  on  them  by  the 
State,  that  they  cannot  delegate  their  powers,  and  that  their  legislation  and 
action  generally  is  subject  to  the  constitution  and  statutes  as  well  of  the 
United  States  as  of  the  State  to  which  they  belong. 

2  Generally  in  the  cities  of  the  second  rank  and  in  Boston. 

s  New  York,  Brooklyn,  Chicago,  Baltimore,  San  Francisco,  Cincinnati,  and 
generally  in  the  larger  cities. 
*  Philadelphia,  St.  Louis. 

5  In  Chicago  aud  San  Francisco  the  mayor  sits  in  the  legislature. 

6  The  Brooklyn  charter  allows  the  mayor  to  appoint  heads  of  departments 
without  any  concurrence  of  the  council,  in  the  belief  that  thus  responsibility  can 
be  better  fixed  upon  him ;  and  New  York  has  lately  (1884)  taken  the  same  course. 

"  Some  idea  of  the  complexity  due  to  the  practice  of  giving  special  charters 
to  particular  cities,  or  passing  special  bills  relating  to  them,  may  be  gathered 


CHAP.  L  THE   GOVERNMENT   OF   CITIES  625 

practice,  some  discretion  as  to  the  enforcement  of  the  law  ;  he 
may,  for  instance,  put  in  force  Sunday  Closing  Acts  or  regula- 
tions, or  omit  to  do  so. 

The  practical  work  of  administration  is  carried  on  by  a 
number  of  departments,  sometimes  under  one  head,  sometimes 
constituted  as  boards  or  commissions.  The  most  important 
of  these  are  directly  elected  by  the  people,  for  a  term  of  one, 
two,  three,  or  four  years.  Some,  however,  are  chosen  by  the 
city  legislature,  some  by  the  mayor  with  the  approval  of  the 
legislature  or  its  upper  chamber.  In  most  cities  the  chief 
executive  officers  have  been  disconnected  from  one  another, 
owing  no  common  allegiance,  except  that  which  their  financial 
dependence  on  the  city  legislature  involves,  and  communicating 
less  with  the  city  legislature  as  a  whole  than  with  its  commit- 
tees, each  charged  with  some  one  branch  of  administration,  and 
each  apt  to  job  it. 

Education  has  been  generally  treated  as  a  distinct  matter, 
with  which  neither  the  mayor  nor  the  city  legislature  has  been 
suffered  to  meddle.  It  is  committed  to  a  Board  of  Education, 
whose  members  are  separately  elected  by  the  people,  or,  as  in 
Brooklyn,  appointed  by  the  mayor,  levy  (though  they  do  not 
themselves  collect)  a  separate  tax,  and  have  an  executive  staff 
of  their  own  at  their  disposal.^ 

The  city  legislature  usually  consists  in  small  cities  of  one 
chamber,  in  large  ones  of  two,  the  upper  of  which  generally 
bears  the  name  of  the  Board  of  Aldermen,  the  lower  that  of 
the  Common  Council.^     All  are  elected  by  the  citizens,  gener- 

from  the  fact  that  in  Ohio,  for  instance,  the  duties  of  the  mayor  vary  greatly 
in  the  six  chief  cities  of  the  State.  There  are  duties  which  a  mayor  has  in 
Cincinnati  only,  out  of  all  the  cities  of  the  State ;  others  which  he  has  in  all 
the  cities  except  Cincinnati ;  others  in  Cincinnati  and  Toledo  only  ;  others  in 
Cleveland,  Toledo,  Columbus,  Dayton,  and  Springfield  only;  others  in  Cleve- 
land and  Toledo  only ;  others  in  Cleveland  only  ;  others  in  Toledo  only ;  others 
in  Columbus  and  Dayton  only.  These  variations  are  the  result  not  of  ordi- 
nances made  by  each  city  for  itself,  but  of  State  legislation. 

1  There  are  some  points  of  resemblance  in  this  system  to  the  government  of 
English  cities,  and  especially  of  London.  The  English  common  councils  elect 
certain  officials  and  manage  their  business  by  committees.  In  London  the 
sheriffs  and  chamberlain  are  elected  by  the  liverymen.  Note,  however,  that 
in  no  English  borougli  or  city  do  we  find  a  two-chambered  legislature,  nor 
(except  as  last  aforesaid  in  London)  officials  elected  by  popular  vote,  nor  a 
veto  on  legislation  vested  in  the  mayor. 

2  Some  large  cities,  however  {e.g.  New  York  and  Brooklyn,  Chicago  with  its 
36  aldermen,  San  Francisco  with  its  12  supervisors),  have  only  one  chamber. 

VOL.  I  2  S 


626  THE    STATE   GOVERNMENTS 


ally  in  wards,  but  the  upper  house  occasionally  by  districts  or 
on  what  is  called  a  "  general  ticket,"  i.e.  a  vote  over  the  whole 
city.^  Usually  the  common  council  is  elected  for  one  year,  or 
at  most  for  two  years,  the  upper  chamber  frequently  for  a 
longer  period.^  Both  are  usually  unpaid  in  the  smaller  cities, 
sometimes  paid  in  the  larger.^  All  city  legislation,  that  is  to 
say,  ordinances,  bye-laws,  and  votes  of  money  from  the  city 
treasury,  are  passed  by  the  council  or  councils,  subject  in 
many  cases  to  the  mayor's  veto.  Except  in  a  few  cities  gov- 
erned by  very  recent  charters,  the  councils  have  some  control 
over  at  least  the  minor  officials.  Such  control  is  exercised  by 
committees,  a  method  borrowed  from  the  State  and  National 
legislatures,  and  suggested  by  the  same  reasons  of  convenience 
which  have  established  it  there,  but  proved  by  experience  to 
have  the  evils  of  secrecy  and  irresponsibility  as  well  as  that 
of  disconnecting  the  departments  from  one  another. 

The  city  judges  are  only  in  so  far  a  part  of  the  municipal 
government  that  in  most  of  the  larger  cities  they  are  elected 
by  the  citizens,  like  the  other  chief  officers.  There  are  usually 
several  superior  judges,  chosen  for  terms  of  five  years  and 
upwards,  and  a  larger  number  of  police  justices,*  generally 
for  shorter  terms.  Occasionally,  however,  the  State  has  pru- 
dently reserved  to  itself  the  appointment  of  judges.  Thus 
in  New  Haven,  Connecticut  (population  in  1890,  81,298)  — 

"Constables,  jiLstices  of  the  peace,  and  a  sheriff,  are  elected  by  the 
citizens,  but  the  city  courts  derive  existence  directly  from  the  State  legis- 
lature. .  .  .  The  mode  of  selecting  judges  is  this :  the  New  Haven 
county  delegation  to  the  dominant  party  in  the  legislature  assembles  in 

1  In  some  few  cities,  among  which  are  Chicago  and  (as  respects  police  mag- 
istrates and  school  directors)  Philadelphia,  the  plan  of  minority  representation 
has  been  to  some  extent  adopted  by  allowing  the  voter  to  cast  his  vote  for 
two  candidates  only  when  there  are  three  places  to  he  filled.  It  was  tried  in 
New  Yoi'k,  but  the  State  Court  of  Appeals  held  it  unconstitutional.  So  far 
as  I  can  ascertain,  this  metliod  has  in  Philadelphia  proved  rather  favourable 
than  otherwise  to  the  "  machine  politicians,"  who  cau  rely  on  their  masses  of 
drilled  voters. 

2  Sometimes  the  councilman  is  required  by  statute  to  be  a  resident  in  the 
ward  he  represents. 

8  Boston  and  Cincinnati  give  no  salary,  St.  Louis  pays  members  of  both  its 
councils  §300  (£G0)  a  year,  Baltimore,  ©1000  (£200).'^  New  York  pays  and 
Brooklyn  does  not. 

*  Sometimes  (as  in  St.  Louis)  the  police  justices  are  nominated  by  the 
mayor. 


CHAP.  L  THE   GOVERNMENT   OF   CITIES  627 

caucus  and  nominates  two  of  the  same  political  faith  to  be  respectively 
judge  and  assistant  judge  of  the  New  Haven  city  court.  Their  choice  is 
adopted  by  their  party,  and  the  nominations  are  duly  ratified,  often  by  a 
strict  party  vote.  Inasmuch  as  the  legislature  is  usually  Republican,  and 
the  city  of  New  Haven  is  unfailingly  Democratic,  these  usages  amount  to 
a  reservation  of  judicial  offices  from  the  '  hungry  and  thirsty  '  local  ma- 
jority, and  the  maintenance  of  a  certain  control  by  the  Republican  coun- 
try towns  over  the  Democratic  city."  ^ 

It  need  hardly  be  said' that  all  the  above  officers,  from  the 
mayor  and  judges  downwards,  are,  like  State  officers,  elected 
by  manhood  suffrage.  Their  election  is  usually  made  to  coin- 
cide with  that  of  State  officers,  perhaps  also  of  Federal  con- 
gressmen. This  saves  expense  and  trouble.  But  as  it  not 
only  bewilders  the  voter  in  his  choice  of  men  by  distracting 
his  attention  between  a  large  number  of  candidates  and  places, 
but  also  confirms  the  tendency,  already  strong,  to  vote  for  city 
officers  on  party  lines,  there  has  of  late  years  been  a  movement 
in  some  places  to  have  the  municipal  elections  fixed  for  a 
different  date  from  that  of  State  or  Federal  elections,  so  that 
the  undistracted  and  non-partisan  thought  of  the  citizens  may 
be  given  to  the  former.- 

At  present  the  disposition  to  run  and  vote  for  candidates 
according  to  party  is  practically  universal,  although  the  duty 
of  party  loyalty  is  deemed  less  binding  than  in  State  or  Federal 
elections,     "When  both  the  great  parties  put  forward  question- 

1  "  During  the  session  of  the  legislature  in  March  188.5  this  argument  was 
put  forward  in  answer  to  a  Democratic  plea  for  representation  upon  the  city 
court  bench.  '  The  Democrats  possess  all  the  other  offices  in  New  Haven.  It's 
only  fair  that  the  Reixiblicaus  should  have  the  city  court.'  Each  party  ac- 
cepted the  statement  as  a  conclusive  reason  for  political  action.  It  would  be 
gratifying  to  find  the  subject  discussed  upon  a  higher  plane,  and  the  incum- 
bents of  the  offices  wlio  had  done  well  continued  from  term  to  term  without 
regard  to  party  affiliations.  But  in  the  present  condition  of  political  morals, 
the  existing  arrangements  are  probably  the  most  practicable  that  could  be 
made.  It  goes  without  saying  that  country  districts  are,  as  a  ride,  more  deserv- 
ing of  political  power  than  are  cities.  If  the  city  judges  were  locally  elected 
upon  the  general  party  ticket,  the  successful  candidates  would  often  be  under 
obligations  to  elements  in  the  community  which  are  the  chief  source  and  nurse 
of  the  criminal  class  —  an  unseemly  position  for  a  judge." — Mr.  Charles  H. 
Levermore  in  bis  interesting  sketch  of  the  "Town  and  City  Government  of 
New  Haven  "  (p.  77). 

2  On  the  other  hand,  there  are  cities  which  hope  to  draw  out  a  larger  vote, 
and  therefore  obtain  a  lietter  choice,  by  putting  their  municipal  elections  at 
the  same  time  as  the  State  elections.    This  was  lately  done  by  Minneapolis. 


628  THE   STATE   GOVERNMENTS  pakt  ii 

able  men,  a  non-partisan  list,  or  so-called  "citizens'  ticket," 
may  be  run  by  a  combination  of  respectable  men  of  both  par- 
ties. Sometimes  this  attempt  succeeds.  However,  though 
the  tenets  of  Republicans  and  Democrats  have  absolutely 
nothing  to  do  with  the  conduct  of  city  affairs,  though  the  sole 
object  of  the  election,  say  of  a  city  comptroller  or  auditor, 
may  be  to  find  an  honest  man  of  good  business  habits,  four- 
fifths  of  the  electors  in  nearly  all  cities  give  little  thought  to 
the  personal  qualifications  of  the  candidates,  and  vote  the 
"  straight  out  ticket." 

The  functions  of  city  governments  may  be  distributed  into 
three  groups  —  (a)  those  which  are  delegated  by  the  State  out 
of  its  general  coercive  and  administrative  powers,  including 
the  police  power,  the  granting  of  licences,  the  execution  of 
laws  relating  to  adulteration  and  explosives ;  (b)  those  which 
though  done  under  general  laws  are  properly  matters  of  local 
charge  and  subject  to  local  regulation,  such  as  education  and 
the  care  of  the  poor ;  and  (c)  those  which  are  not  so  much  of  a 
political  as  of  a  purely  business  order,  such  as  the  paving  and 
cleansing  of  streets,  the  maintenance  of  proper  drains,  the  pro- 
vision of  water  and  light.  In  respect  of  the  first,  and  to  some 
extent  of  the  second  of  these  groups,  the  city  may  be  properly 
deemed  a  political  entity  ;  in  respect  of  the  third  it  is  rather  to 
be  compared  to  a  business  corporation  or  company,  in  which 
the  tax-payers  are  shareholders,  doing,  through  the  agency  of 
the  city  ofiicers,  things  which  each  might  do  for  himself,  though 
with  more  cost  and  trouble.  All  three  sets  of  functions  are 
dealt  with  by  American  legislation  in  the  same  way,  and  are 
alike  given  to  officials  and  a  legislature  elected  by  persons  of 
whom  a  large  part  pay  no  direct  taxes.  Education,  however, 
is  usually  detached  from  the  general  city  government  and 
entrusted  to  a  separate  authority,^  while  in  some  cities  the 
control  of  the  police  has  been  withheld  or  withdrawn  from 
that  government,  and  entrusted  to  the  hands  of  a  separate 
board.^  The  most  remarkable  instance  is  that  of  Boston,  in 
which  city  a  Massachusetts  statute  of  1885  entrusts  the  police 

1  Though  sometimes,  as  in  Baltimore,  the  city  legislature  appoints  a  Board 
of  Education.  Unhappily,  in  some  cities  education  is  "within  politics,"  and, 
as  may  be  supposed,  with  results  unfavourable  to  the  independence  and  even 
to  the  quality  of  the  teachers.  -  So  in  Baltimore. 


CHAP.  L  THE   GOVERNMENT  OF   CITIES  629 

department  and  the  power  to  license,  regulate,  and  restrain  the 
sale  of  intoxicating  liquors,  to  a  special  board  of  three  persons, 
to  be  appointed  for  five  years  by  the  State  governor  and  coun- 
cil. Both  political  parties  are  directed  by  the  statute  to  be 
represented  on  the  board.  (This  is  a  frequent  provision  in 
recent  charters.)  The  city  pays  on  the  board's  requisition  all 
the  expenses  of  the  police  department.  In  New  York  the  po- 
lice commissioners  are  appointed  by  the  mayor,  but  in  order  to 
''take  the  department  out  of  politics"  an  unwritten  under- 
standing has  been  established  that  he,  though  himself  always 
a  partisan,  shall  appoint  two  Democratic  and  two  Republi- 
can commissioners.  The  post  of  policeman  is  "  spoils  "  of  the 
humbler  order,  but  spoils  equally  divided  between  the  parties. 
Taxes  in  cities,  as  in  rural  districts,  are  levied  upon  personal 
as  well  as  real  property ;  and  the  city  tax  is  collected  along 
with  the  county  tax  and  State  tax  by  the  same  collectors. 
There  are,  of  course,  endless  varieties  in  the  practice  of  differ- 
ent States  and  cities  as  to  methods  of  assessment  and  to  the 
minor  imposts  subsidiary  to  the  property  tax.  Both  real  and 
personal  property  are  usually  assessed  far  below  their  true 
value,^  the  latter  because  owners  are  reticent,  the  former  because 
the  city  assessors  are  anxious  to  take  as  little  as  possible  of  the 
State  and  county  burden  on  the  shoulders  of  their  own  com- 
munity, though  in  this  patriotic  effort  they  are  checked  by  the 
county  and  State  Boards  of  Equalization.  Taxes  are  usually  so 
much  higher  in  the  larger  cities  than  in  the  country  districts  or 
smaller  municipalities,  that  there  is  a  strong  tendency  for  rich 
men  to  migrate  from  the  city  to  its  suburbs  in  order  to  escape 
the  city  collector.  Perhaps  the  city  overtakes  them,  extending 
its  limits  and  incorporating  its  suburbs ;  perhaps  they  fly 
farther  afield  by  the  railway  and  make  the  prosperity  of 
country  towns  twenty  or  thirty  miles  away.  The  unfortunate 
consequence  follows,  not  only  that  the  taxes  are  heavier  for 
those  who  remain  in  the  city,  but  that  the  philanthropic  and 
political  work  of  the  city  loses  the  participation  of  those  who 
ought  to  have  shared  in  it.  For  a  man  votes  in  one  place 
only,  the  place  where  he  resides  and  pays  taxes  on  his  per- 

1  In  New  York  the  assessors'  valuation  of  real  estate  is  said  to  be  about  60 
per  cent  of  its  true  value,  iu  Chicago  between  20  and  30  per  cent  of  that  value 
{City  Government  of  Philadelphia,  p.  323). 


630  THE   STATE   GOVERNMEJsTS  part  ii 

sonalty ;  and  where  he  has  no  vote,  he  is  neither  eligible  for 
local  office  nor  deemed  entitled  to  take  a  part  in  local  political 
agitation. 

It  may  conduce  to  a  better  comprehension  of  the  newest 
frame  of  city  government  if  I  present  an  outline  of  the  munic- 
ipal system  in  two  recently  reformed  cities.  In  both  of  them 
there  had  been  serious  maladministration  due  to  causes  to  be 
presently  explained,  and  many  efforts  had  been  made  to  apply 
drastic  remedies.  In  one,  St.  Louis,  a  completely  new  charter 
has  been  enacted,  embodying,  in  the  main,  the  views  of  mu- 
nicipal reformers.  In  the  other,  Boston,  a  number  of  specific 
improvements  have  been  effected  in  a  charter  dating  from 
1854.     I  begin  with  the  latter  as  the  older  city.^ 

Boston  (population  in  1890,  448,477)  is  divided  into  twentj'-four  wards 
and  twelve  aldermanic  districts,  eacli  ward  being  subdivided  into  voting 
precincts  with  about  five  hundred  voters  in  each.  Municipal  elections  are 
held  annually  early  in  December. 

The  mayor  is  elected  for  one  year  by  the  people  of  the  whole  citj' ; 
receives  $10,000  a  year ;  appoints,  subject  to  confirmation  by  the  board 
of  aldermen,  the  chief  officers  and  boards  (except  the  police  board  and 
street  commissioners),  and  may  remove  any  of  them  for  cause.  He 
summons  the  heads  of  departments  at  least  once  a  month  for  consultation. 
Every  ordinance,  order,  resolution,  or  vote  of  the  city  council,  and  every 
act  of  either  branch  or  of  the  school  committee  involving  the  expenditure 
of  money,  is  presented  to  him  for  approval,  and  if  disapproved,  falls  to 
the  ground,  unless  reconsidered,  and  passed  by  a  two-thirds  vote.  He 
may  veto  separate  items  in  a  general  appropriation  bill.  The  depart- 
ments send  their  estimates  to  him,  which  he  submits  to  the  council  with 
his  recommendations  thereon.  All  drafts  on  the  city  treasury,  and  all 
contracts  exceeding  $1000,  require  his  written  approval.'^  [Note  that  he 
is  not  himself  a  member  of  either  branch  of  the  city  legislature.] 

The  legislature,  called  collectively  the  City  Council,  consists  of  two 
branches,  viz.  the  Board  of  Aldermen,  elected  one  from  each  of  twelve 
districts,  and  the  Common  Council  of  seventy-two  members,  three  for 
each  ward.  Both  are  elected  annually.  They  are  restricted  to  purely 
legislative  (including  financial)  functions. 

The  executive  departments  are  the  following  :  — 

Elected  by  popular  vote.  — Three  street  commissioners,  one  each  year 
for  a  three  years'  term,  with  power  to  lay  out  streets  and  assess  damages. 

1  Abstracted  from  Mr.  James  M.  Bugbee's  paper,  entitled  the  "  City  Govern- 
ment of  Boston,"  in  J.  H.  U.  Studies,  fifth  series  (Baltimore,  1887). 

2  The  mayor  has  a  number  of  minor  duties.  "It  appears  from  the  latest 
edition  of  the  Ordinpaices  that  no  one  can  climb  a  tree,  or  throw  stones,  or  lie 
on  the  grass  on  the  Common,  without  getting  a  permit  from  the  mayor." 


CHAP.  L  THE   GOVERNMENT   OF   CITIES  G31 

When  the  estimated  cost  of  a  street  exceeds  §10,000  the  concurrence  of 
the  council  is  required. 

Appointed  by  mayor  and  aldermen.  —  Superintendent  of  streets,  charged 
with  paving,  repairing,  and  watering  the  streets. 

Fire  department  —  three  commissioners  serving  three  years. 

Head  of  department  for  the  survey  and  inspection  of  buildings.  Term 
three  years. 

Health  department  —  three  commissioners,  with  large  sanitation  powers 
for  preserving  public  health  and  abating  nuisances.     Term  three  years. 

Overseers  of  the  poor  —  four  each  year.  Term  three  years,  i  They 
manage  out-door  relief  and  the  trust  fimds  which  the  city  holds  for  that 
purpose.    No  salary. 

Board  of  public  institutions  —  three  commissioners  (substituted  in  1889 
for  nine  directors),  charged  with  the  care  of  the  alms-houses,  houses  of 
correction,  of  industry,  of  reformation,  house  for  pauper  children,  and 
lunatic  hospital.  Term  three  years.  No  salary.  It  is  in  these  institu- 
tions that  in-door  relief  is  given. 

City  hospital  board  ^ — five  persons.     Term  five  years. 

Public  library,  supported  by  money  voted  by  the  council,  five  trustees. 
Term  five  years.     No  salary. 

Park  department  —  three  commissioners.  Term  three  years.  No 
salary.  2 

Water  department  —  board  of  three  which  controls  the  waterworks 
and  fixes  price  of  water.     Term  three  years. 

Assessors'  department  —  five  chief  assessors,  to  value  real  and  personal 
property,  and  assess  city,  county,  and  State  taxes.    Term  three  years. 

City  collector,  who  levies  tax  bills  delivered  to  him  by  the  assessors. 
Appointed  annually. 

The  following  further  officers  are  appointed  by  the  mayor  and  aldermen. 
For  five  years  —  five  commissioners  of  Cedar  Grove  Cemetery  (unpaid) ; 
for  three  years — three  registrars  of  voters,  six  sinking  fund  commis- 
sioners (unpaid);  for  one  year  —  two  record  commissioners  (unpaid), 
five  directors  of  ferries  (unpaid),  five  trustees  of  Mount  Hope  Cemetery 
(unpaid),  city  treasurer,  city  auditor,  corporation  counsel,  city  solicitor, 
superintendent  of  public  buildings,  city  architect,  superintendent  of  street 
lights,  superintendent  of  sewers,  superintendent  of  printing,  superintend- 
ent of  Faneuil  Hall  Market,  superintendent  of  bridges,  city  surveyor, 
water  registrar,  registrar  of  births,  deaths,  and  marriages,  harbour  master 
and  ten  assistants,  commission  for  certain  bridges,  inspector  of  provi- 
sions, inspector  of  milk  and  vinegar,  sealer  (and  four  deputy  sealers)  of 
weights  and  measures,  nine  hundred  and  sixty-eight  election  officers  and 
their  deputies. 

1  Formerly  the  people,  subsequently  the  council,  elected  the  overseers.  As 
under  both  plans  men  sometimes  got  in  who  jobbed  for  their  own  benefit,  the 
present  scheme  was  adopted  in  1885. 

2  This  board  supervises  the  suburban  parks,  the  Common,  and  the  Public 
Garden  (together  with  smaller  open  spaces),  within  the  city,  being  luider  the 
charge  of  a  superintendent  separately  appointed. 


632  THE   STATE   GOVERNMENTS  part  ii 

The  above  (so  far  as  paid)  are  paid  by  salary  fixed  by  the  council. 
The  following  officers,  also  appointed  annually  by  mayor  and  aldermen, 
are  paid  by  fees  :  — 

Inspector  of  lime,  three  inspectors  of  petroleum,  fifteen  inspectors  of 
pressed  hay,  culler  of  hoops  and  staves,  three  fence  viewers,  ten  field 
drivers  and  pomid  keepers,  three  surveyors  of  marble,  nine  superintendents 
of  hay  scales,  four  measurers  of  upper  leather,  fifteen  measurers  of  wood 
and  bark,  twenty  measurers  of  grain,  three  weighers  of  beef,  thirty-eight 
weighers  of  coal,  five  weighers  of  boilers  and  heavy  machinery,  four 
weighers  of  ballast  and  lighters,  ninety-two  undertakers,  one  hundred 
and  fifty  constables. 

In  addition  to  these  there  is  a  city  clerk,  city  messenger,  and  clerk  of 
committees  elected  by  concurrent  vof^  of  the  City  Council,  a  clerk  of  the 
common  council  elected  by  that  body,  and  many  county  officers  elected 
by  the  voters  of  the  county  of  Suffolk,  in  which  Boston  stands,  and  of 
which  Boston  furnishes  nearly  the  whole  population.  The  county  judges, 
however,  are  not  elected,  but,  like  all  other  judges  in  Massachusetts,  are 
appointed  by  the  Governor  and  Council  to  hold  office  quam  diu  se  bene 
gesserint.  Exclusive  of  election  officers  and  fee-paid  officers,  the  mayor 
and  aldermen  appoint  107  persons,  of  whom  65  are  appointed  for  one 
year,  61  receive  salaries,  and  41  serve  gratuitously.  In  the  present  city 
administration  there  are  forty  separate  departments  and  offices,  most  of 
them  with  a  large  number  of  subordinates  and  workmen.  This  "multi- 
plicity of  departments  and  officials  not  only  involves  the  city  in  expenses 
not  to  be  measured  merely  by  the  salaries  paid  to  superfluous  officials,"  ^ 
but  affords  a  large  field  for  the  exercise  of  party  patronage,  a  patronage 
partially  limited,  but  as  regards  subordinates  only,  by  the  Massachusetts 
Civil  Service  Act  of  1884,  which  is  administered  by  a  Civil  Service  Com- 
mission. 

Distinct  from  the  rest  of  the  city  government  is  the  School  Committee 
of  twenty-four  members,  elected  on  a  general  ticket  over  the  whole  city, 
and  serving  for  three  years,  eight  retiring  annually. 

Also  distinct  is  the  Police  Department,  which,  as  already  observed,  has 
by  a  statute  of  1885  been  entrusted  to  a  Board  of  Police,  appointed  by  the 
Governor  and  Council,  of  three  citizens  of  Boston,  with  power  to  "  appoint, 
establish,  and  organize  "  the  police,  and  to  license,  regulate,  and  restrain 
the  sale  of  intoxicating  liquors.^  In  case  of  riot,  the  mayor  can  take 
command  of  the  police  force. 

This  amended  scheme,  although  generally  held  to  be  an 
improvement  on  that  which  preceded  it,  has  not  given  entire  sat- 

1  Report  of  the  Commission  of  1884. 

2  In  the  cities  and  towns  of  Massachusetts  the  question  of  granting  licences 
for  the  sale  of  intoxicants  is  annually  submitted  to  popular  vote.  See  note  to 
Chapter  LXVl.  At  present  in  Boston  and  most  cities  the  grant  has  been  voted. 
The  annual  revenue  which  the  municipality  derives  from  licences  is  in  Boston 
over  5500,000  (£100,000)  per  annum. 


CHAP.  L  THE   GOVERNMENT   OF   CITIES  633 

isfaction.  It  is  tliouglit  that  too  much  executive  power  still 
remains  with  the  ahlermen,  and  that  they  unduly  control  the 
mayor  in  appointments.  Nor  has  the  control  of  the  police  by 
a  State  Board  worked  well.  The  liquor  traffic  is  no  better 
regulated,  while  the  irresponsibility  to  the  city  of  the  Police 
Board  is  found  inconvenient. 

The  city  of  St.  Louis  (population  in  1890, 451,770)  is  governed 
by  a  charter  or  scheme  of  government  which,  in  pursuance  of 
a  special  provision  for  that  purpose  in  the  last  Constitution  of 
Missouri  (1875),  was  prepared  by  a  board  of  thirteen  free- 
holders elected  by  the  people  of  the  city  and  county  of  St. 
Louis,  and  was  finally  adopted  and  ratified  by  the  people  them- 
selves by  a  vote  at  the  polls,  August  22,  1876.^ 

St.  Louis  is  divided  into  28  wards  and  244  voting  precincts.  Elections 
are  governed  l^y  a  strict  law,  which  generally  prevents  frauds,  and  are 
quiet,  all  drinking  saloons  being  closed  till  midnight. 

The  mayor  is  elected  by  the  people  for  four  years,  receives  §5000 
salary,  is  not  a  member  of  the  city  Assembly,  with  which  he  commimi- 
cates  by  messages.  He  has  the  power  of  returning  any  bill  passed  by  the 
Assembly,  subject  to  its  power  to  recon.sider  and  pass  by  a  two-thirds 
vote.  He  recommends  measures  to  the  Assembly,  submits  reports  from 
heads  of  departments,  and  has  a  great  variety  of  minor  executive  duties. 
He  appoints  to  a  number  of  important  offices,  but  in  conjunction  with 
the  Council.  For  the  sake  of  protecting  him  from  the  pressure  of  those 
to  whom  he  owes  his  election,  these  appointments  are  made  by  him  at  the 
beginning  of  the  third  year  of  his  own  term,  and  for  a  term  of  four  years. 

The  Assembly  is  composed  of  two  houses.  The  Council  has  thirteen 
members,  elected  for  four  years  by  "general  ticket"  :  one-third  go  out 
of  office  every  second  year.  The  House  of  Delegates  has  twenty-eight 
members,  one  from  each  ward.  Each  Assembly  man  receives  §300  a 
year,  besides  his  reasonable  expenses  incurred  in  the  city  service.  The 
Assembly  has  a  general  legislative  power  and  supervision  over  all  depart- 
ments, its  borrowing  and  taxing  powers  being,  however,  limited. 

The  administrative  departments  are  the  following,  viz.  :  —  Thirteen 
officers  elected  by  the  people,  viz.  comptroller,  treasurer,  auditor,  regis- 
trar, collector,  marshal,  inspector  of  weights  and  measures,  president  of 
board  of  assessors,  coroner,  sheriff,  recorder  of  deeds,  public  administra- 
tor, president  of  board  of  public  improvements. 

Twenty  Boards  or  officers  are  appointed,  most  of  them  for  four  years, 
by  the  mayor  with  the  approval  of  the  Council,  viz.  :  —  Board  of  public 
improvements,  consisting  of  street  commissioner,  water  do.,  harbour  do., 

1 1  abridge  the  following  account  from  a  valuable  paper  by  Mr.  Marshall  S. 
Snow  (professor  of  history  in  Washington  University,  St.  Louis),  on  the  "  City 
Government  of  St.  Louis,"  in  J.  H.  U.  Studies,  third  series. 


634  THE   STATE   GOVEENMEXTS  part  n 

park  do.,  sewer  do.,  assessor  and  collector  of  water  rates,  commissioner 
of  public  buildings,  commissioner  of  supplies,  commissioner  of  healtli, 
inspector  of  boilers,  city  counsellor,  jury  commissioner,  recorder  of  votes, 
city  attorney,  two  police  court  judges,  jaUer,  superintendent  of  workhouse, 
chief  fire  engineer,  gas  inspector,  assessors,  and  several  city  contractors 
and  minor  officers. 

The  four  police  commissioners  who,  along  with  the  mayor,  are  charged 
with  the  public  safety  of  St.  Louis,  are  appointed  by  the  Governor  of 
Missouri,  with  the  view  of  keeping  this  department  "  out  of  city  politics." 
In  1886  the  police  force  was  598  men  strong,  besides  200  private  watch- 
men, paid  by  their  employers,  but  wearing  a  imiform  and  sworn  in  by 
the  police  board. 

The  city  School  Board  consists  ot  28  members,  one  from  each  ward, 
elected  for  three  years,  one-third  retiring  annually.  It  is  independent  of 
the  mayor  and  Assembly,  chooses  its  staff  and  all  teachers,  has  charge  of 
the  large  school  funds,  and  levies  a  school  tax,  which,  however,  the  city 
collector  collects. 

The  strong  points  of  this  charter  are  deemed  to  be  *'  the  length  of 
term  of  its  municipal  officers  ;  the  careful  provisions  for  honest  registra- 
tion and  the  party  purity  of  elections  ;  the  checks  on  financial  adminis- 
tration and  limitations  of  the  debt,  and  the  fact  that  the  important  offices 
to  which  the  mayor  appoints  are  not  vacant  till  the  beginning  of  his  third 
year  of  office,  so  that  as  rew^ards  of  political  work  done  during  a  heated 
campaign  they  are  too  far  in  the  distance  to  prejudice  seriously  the 
merits  of  an  election."  i 

On  the  whole  the  charter  has  worked  welL  The  public 
works  are  efficiently  managed,  and  the  city  credit  stands  high. 
Nevertheless  the  European  reader  will  feel  some  surprise  at 
the  number  of  elective  offices  and  at  the  limited  terms  for 
which  all  important  offices  are  held.  He  will  note  that  even 
in  democratic  America  the  control  of  the  police  by  cit}^  poli- 
ticians has  been  deemed  too  dangerous  to  be  suffered  to  remain 
in  their  unclean  hands.  And  he  will  contrast  what  may  be 
called  the  political  character  of  the  Avhole  city  constitution 
with  the  somewhat  simpler  and  less  ambitious,  though  also 
less  democratic  arrangements,  which  have  been  found  sufficient 
for  the  management  of  European  cities. 

1  Snow,  lit  supra. 


CHAPTER  LI 

THE    WORKING    OF    CITY    GOVERNMENTS 

Two  tests  of  practical  efficiency  may  be  applied  to  tlie  gov- 
ernmeut  of  a  city :  What  does  it  provide  for  the  people,  and 
what  does  it  cost  the  people  ?  Space  fails  me  to  apply  in  de- 
tail the  former  of  these  tests,  by  showing  what  each  city  does 
or  omits  to  do  for  its  inhabitants ;  so  I  must  be  content  with 
observing  that  in  the  United  States  generally  constant  com- 
plaints are  directed  against  the  bad  paving  and  cleansing  of 
the  streets,  the  non-enforcement  of  the  laws  iDrbidding  gam- 
bling and  illicit  drinking,  and  in  some  places  against  the  sani- 
tary arrangements  and  management  of  public  buildings  and 
parks.  It  would  appear  that  in  the  greatest  cities  there  is  far 
more  dissatisfaction  than  exists  with  the  municipal  adminis- 
tration in  such  cities  as  Glasgow,  Manchester,  Dublin,  Ham- 
burg, Lyons. 

The  following  indictment  of  the  government  of  Philadelphia 
is  somewhat  exceptional  in  its  severity,  and  however  well 
founded  as  to  that  city,  must  not  be  taken  to  be  typical.  A 
memorial  presented  to  the  Pennsylvania  legislature  in  1883  by 
a  number  of  the  leading  citizens  pf  the  Quaker  City  contained 
these  words :  — 

"  The  affairs  of  the  city  of  Philadelphia  have  fallen  into  a  most  de- 
plorable condition.  The  amounts  required  annually  for  the  payment  of 
interest  upon  the  funded  debt  and  current  expenses  render  it  necessary  to 
impose  a  rate  of  taxation  which  is  as  heavj'  as  can  be  borne. 

"In  the  meantime  the  streets  of  the  city  have  been  allowed  to  fall  into 
such  a  state  as  to  be  a  reproach  and  a  disgrace.  Philadelphia  is  now 
recognized  as  the  worst-paved  and  worst-cleaned  city  in  the  civilized 
w^orld. 

' '  The  water  supply  is  so  bad  that  during  many  weeks  of  the  last  winter 
it  was  not  only  distasteful  and  unwholesome  for  drinking,  but  offensive 
for  bathing  purposes. 

' '  The  effort  to  clean  the  streets  was  abandoned  for  months,  and  no  at- 

635 


636  THE   STATE   GOVERNMENTS  part  ii 

tempt  was  made  to  that  end  until  some  public-spirited  citizens,  at  their 
own  expense,  cleaned  a  number  of  the  principal  thoroughfares. 

' '  The  system  of  sewerage  and  the  physical  condition  of  the  sewers  is 
notoriously  bad  —  so  much  so  as  to  be  dangerous  to  the  health  and  most 
offensive  to  the  comfort  of  our  people. 

"Public  woi-k  has  been  done  so  badly  that  structures  have  had  to  be  re- 
newed almost  as  soon  as  finished.  Others  have  been  in  part  constructed  at 
enormous  expense,  and  then  permitted  to  fall  to  decay  without  completion. 

"  Ineificiency,  waste,  badly-paved  and  filthy  streets,  unwholesome  and 
offensive  water,  and  slovenly  and  costly  management,  have  been  the  rule 
for  years  past  throughout  the  city  government." 

In  most  of  the  points  comprised  in  the  above  statement, 
Philadelphia  was  probably  at  that  date  —  for  her  government 
has  since  been  reformed  —  among  the  least  fortunate  of  Ameri- 
can cities.  He,  however,  who  should  interrogate  one  of  the 
"  good  citizens  "  of  Baltimore,  Cincinnati,  New  Orleans,  New 
York,  Chicago,  San  Francisco,  would  have  heard  then,  and 
would  hear  no^^  similar  complaints,  some  relating  more  to  the 
external  condition  of  the  city,  some  to  its  police  administra- 
tion, but  all  showing  that  the  objects  for  which  municipal 
government  exists  have  been  very  imperfectly  attained. 

The  other  test,  that  of  expense,  is  easily  applied.  Both  the 
debt  and  the  taxation  of  American  cities  have  risen  with  un- 
precedented rapidity,  and  now  stand  at  an  alarming  figure. 

A  table  of  the  increase  of  population,  valuation,  taxation, 
and  debt,  in  fifteen  of  the  largest  cities  of  the  United  States, 
from  1860  to  1875  shows  the  following  result :  — 

Increase  in  population 70.5  per  cent. 

"  taxable  valuation      ....  156.9        " 

"  debt  .         .    ■     .         .         ,         .  270.9        " 

"  taxation 36.3.2  1      « 

Looking  at  some  individual  cases,  we  find  that  the  debt  rose 
as  follows :  — 

Philadelphia  .        .        .     1867,  $35,000,000  —  1877,  $64,000,000 

Chicago  .  .         .         .        "  4,750,000—    "         13,456,000 

St.  Louis  ..."  5,500,000—    "         16,500,000 

Pittsburg  ..."  3,000,000—    "         13,000,0002 

1  Municipal  Development  of  Philadelphia,  by  Messrs.  Allinson  and  Penrose, 
p.  275. 

2  Article  "Cities"  (by  Mr.  S.  Stern)  iu  Amer.  Cyclop,  of  Polit.  Science. 
He  observes :  "  The  cost  of  opening  or  improving  highways  and  of  placing 


CHAP.  LI       THE    WORKING   OF   CITY   GOVERNMENTS  637 

Much  of  this  debt  is  doubtless  represented  by  permanent 
improvements,  yet  for  another  large,  and  in  some  cities  far 
larger,  part  there  is  nothing  to  show;  it  is  due  to  simple 
waste  or  to  malversation  on  the  part  of  the  niTinicipal  author- 
ities. 

As  respects  current  expenditure,  New  York  in  1884  spent 
on  current  city  purposes,  exclusive  of  payments  on  account  of 
interest  on  debt,  sinking  fund,  and  maintenance  of  judiciary, 
the  sum  of  ^20,232,786  —  equal  to  $16.76  (£3:  8s.)  for  each 
inhabitant  (census  of  1880).  In  Boston,  in  the  same  year,  the 
city  expenditure  was  $9,909,019  —  equal  to  $27.30  (£5:  9:  3) 
for  each  inhabitant  (census  of  1880).  In  1889  the  total  ordi- 
nary expenditure  of  Xew  York  Avas  $48,937,694  (being  $32.30 
for  each  inhabitant)  ;  that  of  Boston,  $16,117,043  (being  $35.94 
for  each  inhabitant).^ 

There  is  no  denying  that  the  government  of  cities  is  the  one 
conspicuous  failure  of  the  United  States.  The  deficiencies  of 
the  National  government  tell  but  little  for  evil  on  the  welfare 
of  the  people.  The  faults  of  the  State  governments  are  insig- 
nificant compared  with  the  extravagance,  corruption,  and  mis- 
management which  mark  the  administrations  of  most  of  the 
great  cities.  For  these  evils  are  not  confined  to  one  or  two 
cities.  The  commonest  mistake  of  Europeans  who  talk  about 
America  is  to  assume  that  the  political  vices  of  New  York  are 
found  everywhere.  The  next  most  common  is  to  suppose  that 
they  are  found  nowhere  else.  In  New  York  they  have  re- 
vealed themselves  on  the  largest  scale.  They  are  "  gross  as 
a  mountain,  open,  palpable."  But  there  is  not  a  city  with  a 
population  exceeding  200,000  where  the  poison  germs  have  not 
sprung  into  a  vigorous  life ;  and  in  some  of  the  smaller  ones, 
down  to  70,000,  it  needs  no  microscope  to  note  the  results 
of  their  growth.  Even  in  cities  of  the  third  rank  similar 
phenomena  may  occasionally  be  discerned,  though  there,  as 

sewers  in  streets  is  of  course  not  included  in  this  vast  aggregate  of  moneys 
annually  levied  and  debt  rolled  up,  because  the  cost  of  those  improvements  is 
levied  directly  upon  the  land  by  way  of  assessments,  and  they  never  figure  as 
part  of  the  ordinary  expenditure  of  the  city." 

In  New  York  the  total  net  funded  debt  was  in  Dec.  1891,  .? 97, 857 ,230. 

1  These  totals  of  1890  (census  returns)  include  all  the  ordinary  expendi- 
tures, but  not  sums  paid  for  investment  securities  or  redemption  of  municipal 
debt. 


638  THE   STATE   GOVERNMENTS  part  ii 

some  one  has  said,  the  jet  black  of  New  York  or  San  Fran- 
cisco dies  away  into  a  harmless  gray. 

For  evils  which  appear  wherever  a  large  population  is  densely 
aggregated,  there  must  be  some  general  and  widespread  causes. 
What  are  these  causes  ?  Adequately  to  explain  them  would 
be  to  anticipate  the  account  of  the  party  system  to  be  given 
in  the  latter  part  of  this  volume,  for  it  is  that  party  system 
which  has,  not  perhaps  created,  but  certainly  enormously 
aggravated  them,  and  impressed  on  them  their  specific  type.-' 
I  must  therefore  restrict  myself  for  the  present  to  a  brief 
enumeration  of  the  chief  sources  of  the  malady,  and  the  chief 
remedies  that  have  been  suggested  for  or  applied  to  it.  No 
political  subject  has  been  so  copiously  discussed  of  late  years 
in  America  by  able  and  experienced  publicists,  nor  can  I  do 
better  than  present  the  salient  facts  in  the  words  which  some  of 
these  men,  speaking  in  a  responsible  position,  have  employed. 

The  iSTew  York  commissioners  of  1876  appointed  "to  devise 
a  plan  for  the  government  of  cities  in  the  State  of  New  York," 
sum  up  the  mischief  as  follows  :  ^  — 

"  1.  The  accumulation  of  permanent  municipal  debt :  In  New  York  it 
was,  in  1840,  $10,000,000  ;  in  1850,  $12,000,000  ;  in  1860,  $18,000,000  ;  in 
1870,  $73,000,000  ;  iu  1876,  $113,000,000.3 

1  See  Part  III.,  and  especially  Chapters  LXII.  and  LXIII.  See  also  the 
chapters  in  Vol.  II.  on  the  Tweed  Ring  in  New  York  City,  and  the  Gas  Ring  in 
Philadelphia.  The  full  account  given  in  those  chapters  of  the  phenomena  of 
municipal  misgovernment  in  the  two  largest  cities  in  the  United  States  seems 
to  dispense  me  from  the  duty  of  here  descrihing  those  phenomena  in  general. 

2  The  commission,  of  which  Mr.  W.  M.  Evarts  (afterwards  senator  from 
New  York)  was  chairman,  included  some  of  the  ahlest  men  iu  the  State,  and 
its  report,  presented  6th  March  1877,  may  he  said  to  have  become  classical. 
Most  of  it  is  as  applicable  now  to  great  cities  as  it  was  iu  1876. 

3  The  New  York  commissioners  say:  "  The  magnitude  and  rapid  increase  of 
this  debt  are  not  less  remarkable  than  the  poverty  of  the  results  exhibited  as 
the  return  for  so  prodigious  an  expenditure.  It  was  abundantly  sufficient  for 
the  construction  of  all  the  public  works  of  a  great  metropolis  for  a  century  to 
come,  and  to  have  adorned  it  besides  with  the  sjilendours  of  architecture  and 
art.  Instead  of  this,  the  wharves  and  piers  are  for  the  most  part  temporary 
and  perishable  structures ;  the  streets  are  poorly  j^aved ;  the  sewers  in  great 
measure  imperfect,  insufficient,  and  iu  bad  order;  the  iiublic  buildings  shabby 
and  inadequate ;  and  there  is  little  which  the  citizen  can  regard  with  satisfac- 
tion, save  tlie  aqueduct  and  its  appurtenances  and  the  public  park.  Even  these 
should  not  be  said  to  be  the  product  of  the  public  debt ;  for  the  expense  occa- 
sioned by  them  is,  or  should  have  been,  for  tlie  most  part  already  extinguished. 
In  truth,  the  larger  part  of  the  city  debt  represents  a  vast  aggregate  of  moneys 
wasted,  embezzled,  or  misapplied." 


CHAP.  LI       THE    WORKING   OF   CITY   GOVERNMENTS  639 

"2.  The  excessive  increase  of  the  annual  expenditure  for  ordinary 
purposes  :  In  1816  tlie  amount  raised  by  taxation  was  less  than  h  per 
cent  on  the  taxable  property  ;  in  1850,  1.13  per  cent ;  in  1860,  1.69  per 
cent ;  in  1870,  2.17  per  cent ;  in  1876,  2.67  per  cent.  .  .  .  The  increase 
in  the  annual  expenditure  since  1850,  as  compared  with  the  increase  of 
population,  is  more  than  400  per  cent,  and  as  compared  with  the  increase 
of  taxable  property,  more  than  200  per  cent." 

They  suggest  the  following  as  the  causes :  — 

1.  Incompetent  and  unfaithful  governing  boards  and  officers. 

"  A  large  number  of  important  offices  have  come  to  be  filled  by  men 
possessing  little,  if  any,  fitness  for  the  important  duties  they  are  called 
upon  to  discharge.  .  .  .  These  unworthy  holders  of  public  trusts  gain 
their  places  by  their  own  exertions.  The  voluntary  suffrage  of  their 
fellow-citizens  would .  never  have  lifted  them  into  office.  Animated  by 
the  expectation  of  unlawful  emoluments,  they  expend  large  sums  to 
secure  their  xDlaces,  and  make  promises  beforehand  to  supporters  and 
retainers  to  furnish  patronage  or  place.  The  corrupt  promises  must  be 
redeemed.  Anticipated  gains  must  be  realized.  Hence  old  and  educated 
subordinates  must  be  dismissed  and  new  places  created  to  satisfy  the 
crowd  of  friends  and  retainers.  Profitable  contracts  must  be  awarded, 
and  needless  public  works  undertaken.  The  amounts  required  to  satisfy 
these  illegitimate  objects  enter  into  the  estimates  on  which  taxation  is 
eventually  based,  in  fact  they  constitute  in  many  instances  a  superior 
lien  upon  the  moneys  appropriated  for  government,  and  not  until  they 
are  in  some  manner  satisfied  do  the  real  wants  of  the  public  receive  atten- 
tion. It  is  speedily  found  that  these  unlawful  demands,  together  with 
the  necessities  of  the  public,  call  for  a  sum  which,  if  taken  at  once  by 
taxation,  would  produce  dissatisfaction  and  alarm  in  the  community, 
and  bring  public  indignation  upon  the  authors  of  such  burdens.  For  the 
purpose  of  averting  such  consequences  divers  pretences  are  put  forward 
suggesting  the  propriety  of  raising  means  for  alleged  exceptional  purposes 
by  loans  of  money,  and  in  the  end  the  taxes  are  reduced  to  a  figiu'e  not 
calculated  to  arouse  the  public  to  action,  and  any  failure  thus  to  raise  a 
sufficient  sum  is  supplied  by  an  issue  of  bonds.  .  .  .  Yet  this  picture 
fails  altogether  to  convey  an  adequate  notion  of  the  elaborate  systems  of 
depredation  which,  under  the  name  of  city  governments,  have  from  time 
to  time  afflicted  our  principal  cities  ;  and  it  is  moreover  a  just  indication 
of  tendencies  in  operation  in  all  our  cities,  and  which  are  certain,  unless 
arrested,  to  gather  increased  force.  It  would  clearly  be  within  bounds 
to  say  that  more  than  one-half  of  all  the  present  city  debts  are  the  direct 
results  of  the  species  of  intentional  and  corrupt  misrule  above  de- 
scribed." 

2.  The  introduction  of  State  and  national  politics  into 
municipal  affairs. 


640  THE   STATE   GOVERNMENTS  part  ii 

' '  The  formation  of  general  political  parties  upon  differences  as  to 
general  principles  or  methods  of  State  policy  is  useful,  or  at  all  events 
inevitable.  But  it  is  rare  indeed  that  any  such  questions,  or  indeed  any 
upon  which  good  men  ought  to  differ,  arise  in  connection  with  the  con- 
duct of  municipal  affairs.  Good  men  cannot  and  do  not  differ  as  to 
whether  municipal  debt  ought  to  be  restricted,  extravagance  checked, 
and  municipal  affairs  lodged  in  the  bauds  of  competent  and  faithful 
oflftcers.  There  is  no  more  reason  why  the  control  of  the  public  works 
of  a  great  city  should  be  lodged  in  the  hands  of  a  Democrat  or  a  Repub- 
lican than  there  is  why  an  adherent  of  one  or  the  other  of  the  great 
parties  should  be  made  the  superintendent  of  a  business  corporation. 
Good  citizens  interested  in  honest  municipal  government  can  secure  that 
object  only  by  acting  together.  Political  divisions  separate  them  at  the 
start,  and  render  it  impossible  to  secure  the  object  desired  equally  by 
both.  .  .  .  This  obstacle  to  the  union  of  good  citizens  paralyzes  all 
ordinary  efforts  for  good  municipal  government.  .  .  .  The  great  prizes 
in  the  shape  of  i^lace  and  power  which  are  offered  on  the  broad  fields  of 
national  and  State  politics  offer  the  strongest  incentives  to  ambition. 
Personal  advancement  is  in  these  fields  naturally  associated  with  the 
achievement  of  great  public  objects,  and  neither  end  can  be  secured 
except  through  the  success  of  a  political  party  to  which  they  are  at- 
tached. The  strife  thus  engendered  develops  into  a  general  battle  in 
which  each  side  feels  that  it  cannot  allow  any  odds  to  the  other-.  If  one 
seeks  to  turn  to  its  advantage  the  patronage  of  municipal  office,  the  other 
must  cany  the  contest  into  the  same  sphere.  It  is  certain  that  the  temp- 
tation will  be  withstood  by  neither.  It  then  becomes  the  direct  interest 
of  the  foremost  men  of  the  nation  to  constantly  keep  their  forces  in 
hostile  array,  and  these  must  be  led  by,  among  other  ways,  the  pat- 
ronage to  be  secured  by  the  control  of  local  affairs.  .  .  .  Next  to  this 
small  number  of  leading  men  there  is  a  large  class  who,  though  not  dis- 
honest or  devoid  of  public  spirit,  are  led  by  habit  and  temperament  to 
take  a  wholly  partisan  view  of  city  affairs.  Their  enjoyment  of  party 
struggles,  their  devotion  to  those  who  share  with  them  the  triumphs  and 
defeats  of  the  political  game,  are  so  intense  that  they  gradually  lose 
sight  of  the  object  for  which  parties  exist  or  ought  to  exist,  and  consider- 
able proportions  of  them  in  their  devotion  to  politics  suffer  themselves  to 
be  driven  from  the  walks  of  regular  industry,  and  at  last  become  depend- 
ent for  their  livelihood  on  the  patronage  in  the  hands  of  their  chiefs. 
Mingled  with  them  is  nearly  as  large  a  number  to  whom  politics  is  sim- 
ply a  mode  of  making  a  livelihood  or  a  fortune,  and  who  take  part  in 
political  contests  without  enthusiasm,  and  often  without  the  pretence  of 
an  interest  in  the  public  welfare,  and  devote  themselves  o^jenly  to  the 
organization  of  the  vicious  elements  of  society  in  combinations  strong 
enough  to  hold  the  balance  in  a  closely-contested  election,  overcome  the 
political  leaders,  and  secure  a  fair  share  of  the  municipal  patronage,  or 
else  extort  imrhunity  from  the  officers  of  the  law.  .  .  .  The  rest  of  the 
community,  embracing  the  large  majority  of  the  more  thrifty  classes, 
averse  to  engaging  in  what  they  deem  the  '  low  business  '  of  politics,  or 


CHAP.  LI       THE    AYORKING   OF   CITY   GOVERNMENTS  G41 

hopeless  of  accomplishing  any  substantial  good  in  the  face  of  such  pow- 
erful opposing  interests,  for  the  most  part  content  themselves  with  act- 
ing in  accordance  with  their  respective  parties.  ...  It  is  through  the 
agency  of  the  great  political  parties,  organized  and  operating  as  above 
described,  that  our  municipal  officers  are  and  have  long  been  selected. 
It  can  scarcely  be  matter  of  wonder  then  that  the  present  condition  of 
municipal  affairs  should  present  an  aspect  so  desperate." 

3.    The  assumption  by  the  State  legislature  of  the   direct 
control  of  local  affairs. 

"This  legislative  intervention  has  necessarily  involved  a  disregard  of 
one  of  the  most  fundamental  principles  of  republican  government  (the 
self-government  of  municipalites).  .  .  .  The  representatives  elected 
to  the  central  (State)  legislature  have  not  the  requisite  time  to  direct  the 
local  affairs  of  the  municipalities.  .  .  .  They  have  not  the  requisite 
knowledge  of  details.  .  .  .  When  a  local  bill  is  under  consideration 
in  the  legislature,  its  care  and  explanation  are  left  exclusively  to  the 
representatives  of  the  locality  to  which  it  is  applicable  ;  and  sometimes 
by  express,  more  often  by  a  tacit  understanding,  local  bills  are  '  log- 
rolled' through  the  houses.  Thus  legislative  duty  is  delegated  to  the 
local  representatives,  who,  acting  frequently  in  combination  with  the 
sinister  elements  of  their  constituency,  shift  the  responsibility  for  wrong- 
doing from  themselves  to  the  legislature.  But  what  is  even  more  impor- 
tant, the  general  representatives  have  not  that  sense  of  personal  interest 
and  personal  responsibility  to  their  constituents  which  are  indispensable 
to  tbe  intelligent  administration  of  local  affairs.  And  yet  the  judgment 
of  the  local  governing  bodies  in  various  parts  of  the  State,  and  the  wishes 
of  their  constituents,  are  liable  to  be  overruled  by  the  votes  of  legisla- 
tors living  at  a  distance  of  a  hundred  miles.  ...  To  appreciate  the 
extent  of  the  mischief  done  by  the  occupation  of  the  central  legislative 
body  with  the  consideration  of  a  multitude  of  special  measures  relating  to 
local  affairs,  some  good,  probably  the  larger  part  bad,  one  has  only  to 
take  up  the  session  laws  of  any  year  at  random  and  notice  the  subjects 
to  which  they  relate.  Of  the  808  acts  passed  in  1870,  for  instance,  212 
are  acts  relating  to  cities  and  villages,  94  of  which  relate  to  cities,  and  36 
to  the  city  of  New  York  alone.  A  still  larger  number  have  reference  to 
the  city  of  Brooklyn.  These  212  acts  occupy  more  than  three-fourths  of 
the  2000  pages  of  the  laws  of  that  year.  .  .  .  The  multiplicity  of  laws 
relating  to  the  same  subjects  thus  brought  into  existence  is  itself  an  evil 
of  great  magnitude.  What  the  law  is  concerning  some  of  the  most  im- 
portant interests  of  our  principal  cities  can  be  ascertained  only  by  the 
exercise  of  the  patient  research  of  professional  lawyers.  In  many  in- 
stances even  professional  skill  is  baffled.  Says  Chief-Justice  Church: 
'  It  is  scarcely  safe  for  any  one  to  speak  confidently  on  the  exact  con- 
dition of  the  law  in  respect  to  public  improvements  in  the  cities  of  New 
York  and  Brooklyn.  The  enactments  referring  thereto  have  been  modi- 
fied, superseded,  and  repealed  so  often  and  to  such  an  extent  that  it  is 
VOL.  I  2  T 


642  THE   STATE   GOVERNMENTS  part  ii 

difficult  to  ascertain  just  what  statutes  are  in  force  at  any  particular  time. 
The  uncertainties  arising  from  such  multiplied  and  conflicting  legislation 
lead  to  incessant  litigation  with  its  expensive  burdens,  public  and  private.' 
.  .  .  But  this  is  not  all  nor  the  worst.  It  may  be  true  that  the  first 
attempts  to  secure  legislative  intervention  in  the  local  affairs  of  our  prin- 
cipal cities  were  made  by  good  citizens  in  the  supposed  interest  of  reform 
and  good  government,  and  to  counteract  the  schemes  of  corrupt  officials. 
The  notion  that  legislative  control  was  the  proper  remedy  was  a  serious 
mistake.  The  corrupt  cliques  and  rings  thus  sought  to  be  baffled  were 
quick  to  perceive  that  in  the  business  of  procuring  special  laws  concern- 
ing local  affairs  they  could  easily  outmatch  the  fitful  and  clumsy  labours 
of  disinterested  citizens.  The  transfer  of  the  control  of  the  municipal 
resources  from  the  localities  to  the  (State)  capitol  had  no  other  effect  than 
to  cause  a  like  transfer  of  the  mtthods  and  arts  of  corruption,  and  to 
make  the  fortunes  of  our  principal  cities  the  traffic  of  the  lobbies.  Munici- 
pal corruption,  previously  confined  within  territorial  limits,  thenceforth 
escaped  all  bounds  and  spread  to  every  quarter  of  the  State.  Cities  were 
compelled  by  legislation  to  buy  lands  for  parks  and  places  because  the 
owners  wished  to  sell  them  ;  compelled  to  grade,  pave,  and  sewer  streets 
without  inhabitants,  and  for  no  other  purpose  than  to  award  corrupt  con- 
tracts for  the  work.  Cities  were  compelled  to  purchase,  at  the  public 
expense,  and  at  extravagant  prices,  the  property  necessary  for  streets 
and  avenues,  useless  for  any  other  purpose  than  to  make  a  market  for  the 
adjoining  property  thus  improved.  Laws  were  enacted  abolishing  one 
office  and  creating  another  with  the  same  duties  in  order  to  transfer  official 
emoluments  from  one  man  to  another,  and  laws  to  change  the  functions 
of  officers  with  a  view  only  to  a  new  distribution  of  patronage,  and  to 
lengthen  the  terms  of  offices  for  no  other  purpose  than  to  retain  in  place 
officers  who  could  not  otherwise  be  elected  or  appointed." 

This  last-mentioned  cause  of  evil  is  no  doubt  a  departure 
from  the  principle  of  local  popular  control  and  responsibility 
on  which  State  governments  and  rural  local  governments  have 
been  based.  It  is  a  dereliction  which  has  brought  its  punish- 
ment with  it.  But  the  resulting  mischiefs  have  been  immensely 
aggravated  by  the  vices  of  the  legislatures  in  a  few  of  the 
States,  such  as  New  York  and  Penns^dvania.  As  regards 
the  two  former  causes,  they  are  largely  due  to  what  is  called 
the  Spoils  system,  whereby  office  becomes  the  reward  of  party 
service,  and  the  whole  machinery  of  party  government  made  to 
serve,  as  its  main  object,  the  getting  and  keeping  of  places. 
Now  the  Spoils  system,  with  the  party  machinery  which  it 
keeps  oiled  and  greased  and  always  working  at  high  pressure, 
is  far  more  potent  and  pernicious  in  great  cities  than  in  coun- 
try districts.     For  in  great  cities  we  find  an  ignorant  multi- 


CHAP.  LI       THE    WORKING   OF   CITY   GOVERNMENTS  643 


tude,  largely  composed  of  recent  immigrants,  untrained  in  self- 
government  ;  we  find  a  great  proportion  of  the  voters  paying 
no  direct  taxes,  and  therefore  feeling  no  interest  in  moderate 
taxation  and  economical  administration ;  we  find  able  citizens 
absorbed  in  their  private  businesses,  cultivated  citizens  un- 
usually sensitive  to  the  vulgarities  of  practical  politics,  and 
both  sets  therefore  specially  unwilling  to  sacrifice  their  time 
and  tastes  and  comfort  in  the  struggle  with  sordid  wire-pull- 
ers and  noisy  demagogues.  In  great  cities  the  forces  that 
attack  and  pervert  democratic  government  are  exceptionally 
numerous,  the  defensive  forces  that  protect  it  excei)tionally 
ill-placed  for  resistance.  Satan  has  turned  his  heaviest  bat- 
teries on  the  weakest  part  of  the  ramparts. 

Besides  these  three  causes  on  which  the  commissioners  dwell, 
and  the  effects  of  which  are  felt  in  the  great  cities  of  other 
States  as  well  as  of  Xew  York,  though  perhaps  to  a  less 
degree,  there  are  what  may  be  called  mechanical  defects  in  the 
structure  of  municipal  governments,  whose  nature  may  be 
gathered  from  the  account  given  in  last  chapter.  There  is  a 
want  of  methods  for  fixing  public  responsibility  on  the  govern- 
ing persons  and  bodies.  If  the  mayor  jobs  his  patronage  he 
can  throw  large  part  of  the  blame  on  the  aldermen  or  other 
confirming  council,  alleging  that  he  would  have  selected  better 
men  could  he  have  hoped  that  the  aldermen  would  approve  his 
selection.  If  he  has  failed  to  keep  the  departments  up  to  their 
work,  he  may  argue  that  the  city  legislature  hampered  him  and 
would  not  pass  the  requisite  ordinances.  Each  house  of  a  two- 
chambered  legislature  can  excuse  itself  by  pointing  to  the 
action  of  the  other,  or  of  its  own  committees,  and  among  the 
numerous  members  of  the  chambers  —  or  even  of  one  cham- 
ber if  there  be  but  one  —  responsibility  is  so  divided  as  to 
cease  to  come  forcibly  home  to  any  one.  The  various  boards 
and  officials  have  generally  had  little  intercommunication ;  ^ 
and  the  fact  that  some  were  directly  elected  by  the  people 
made  these  feel  themselves  independent  both  of  the  mayor  and 
the  city  legislature.     The  mere  multiplication  of  elective  posts 

1  111  Pliilarlelphia  some  one  has  observed  that  there  were  four  distinct  and 
independent  authorities  witli  power  to  tear  up  the  streets,  and  that  tliere  was 
no  authority  upon  whom  the  duty  was  specifically  laid  to  put  them  in  repair 
again. 


644  THE   STATE   GOVERNMENTS  part  ii 

distracts  the  attention  of  the  people,  and  deprives  the  voting 
at  the  polls  of  its  efficiency  as  a  means  of  reproof  or  commenda- 
tion.^ 

To  trace  municipal  misgovernment  to  its  sources  was  com- 
paratively easy.  To  show  how  these  sources  might  be  dried 
up  was  more  difficult,  though  as  to  some  obvious  remedies  all 
reformers  were  agreed.  What  seemed  all  but  impracticable 
was  to  induce  the  men  who  had  produced  these  evils,  who  used 
them  and  profited  by  them,  who  were  so  accustomed  to  them 
that  even  the  honester  sort  did  not  feel  their  turpitude,  to 
consent  to  the  measures  needed  for  extinguishing  their  own 
abused  power  and  illicit  gains.  It  was  from  the  gangs  of  city 
politicians  and  their  allies  in  the  State  legislatures  that  reforms 
had  to  be  sought,  and  the  enactment  of  their  own  abolition 
obtained.  In  vain  would  the  net  be  spread  in  the  sight  of 
such  birds. 

The  remedies  proposed  by  the  New  York  commission  were 
the  following :  — 

(a)  A  restriction  of  the  power  of  the  State  legislature  to 
interfere  by  special  legislation  with  municipal  governments  or 
the  conduct  of  municipal  affairs.^ 

(b)  The  holding  of  municipal  elections  at  a  different  period 
of  the  year  from  State  and  National  elections.  This  has  been 
again  taken  up  and  pressed  within  the  last  year  or  two  (1892) 
and  seems  to  have  a  chance  of  being  carried. 

(c)  The  vesting  of  the  legislative  powers  of  municipalities 
in  two  bodies  :  —  A  board  of  aldermen,  elected  by  the  ordinary 
(manhood)  suffrage,  to  be  the  common  council  of  each  city.  A 
board  of  finance  of  from  six  to  fifteen  members,  elected  by 
voters  who  had  for  two  years  paid  an  annual  tax  on  property 
assessed  at  not  less  than  f500  (£100),  or  a  rent  (for  premises 

1  Mr.  Seth  Low  remarks:  —  "  Greatly  to  multiply  important  elective  officers 
is  not  to  increase  popular  control,  but  to  lessen  it.  The  expression  of  the 
popular  will  at  the  hallot-box  is  like  a  great  blow  struck  by  an  engine  of 
enormous  force.  It  can  deliver  a  blow  competent  to  overthrow  any  officer, 
however  powerful.  But,  as  in  mechanics,  great  power  has  to  be  subdivided  in 
order  to  do  fine  work,  so  in  giving  expression  to  the  popular  will  the  necessity 
of  choosing  amid  a  multitude  of  unimportant  officers  involves  inevitably  a  loss 
of  power  to  the  peoijle."  —  Address  on  Municipal  Government,  February  1885. 

2  The  constitutions  of  many  States  now  prescribe  that  cities  shall  be  incor- 
porated by  general  laws.  This  prohibition  of  special  legislation  has  generally 
worked  well,  though  it  is  sometimes  evaded.     See  pp.  537  and  553,  ante. 


CHAP.  LI       THE   WORKING  OF   CITY   GOVERNMENTS  645 

occupied)  of  not  less  than  $250.^  This  board  of  finance  was  to 
have  a  practically  exclusive  control  of  the  taxation  and  expen- 
diture of  each  city,  and  of  the  exercise  of  its  borrowing  powers, 
and  was  in  some  matters  to  act  only  by  a  two-thirds  majority. 

(d)  Limitations  on  the  borrowing  powers  of  the  municipal- 
ity, the  concurrence  of  the  mayor  and  two-thirds  of  the  State 
legislature,  as  well  as  of  two-thirds  of  the  board  of  finance 
being  required  for  any  loan  except  in  anticipation  of  current 
revenue. 

(e)  An  extension  of  the  general  control  and  appointing 
power  of  the  mayor,  the  mayor  being  himself  subject  to 
removal  for  cause  by  the  governor  of  the  State. 

To  introduce  all  of  these  reforms  it  became  necessary  to 
amend  the  constitution  of  the  State  of  New  York ;  and  the 
commission  drafted  a  series  of  amendments  accordingly. 
These  went  before  the  State  legislature.  But  the  birds  saw 
the  net,  and  naturally  omitted  to  submit  the  amendments  to 
the  people.  The  report,  in  fact,  fell  to  the  ground.  But  in 
the  recent  legislative  charters  of  several  cities,  and  notably  of 
Brooklyn  (as  to  which  see  next  chapter),  some  of  the  commis- 
sioners' suggestions  have  been  adopted,  and  with  excellent 
results.  The  most  novel  of  them,  however,  and  the  one  which 
excited  most  hostile  criticism,  that  of  creating  a  council  elected 
by  voters  having  a  tax-paying  (or  rent-paying)  qualification, 
has  never  been  tried  in  any  great  city.  It  is  deemed  undemo- 
cratic ;  practical  men  say  there  is  no  use  submitting  it  to  a 
popular  vote.^    Nevertheless,  there  are  still  some  who  advocate 

1  This  was  to  apply  to  cities  with  a  population  exceeding  100,000.  In  smaller 
cities  the  rent  was  to  he  5?  100  at  least,  and  no  minimum  for  the  assessed  value 
of  the  taxed  property  was  to  he  fixed. 

2  Though,  as  the  commission  pointed  out  (Report,  p.  33),  the  principle  that 
no  one  should  vote  upon  any  proposition  to  raise  a  tax  or  appropriate  its  pro- 
ceeds unless  himself  liahle  to  he  assessed  for  such  tax,  was  one  generally 
applied  in  the  village  charters  of  the- State  of  New  York,  and  even  in  the 
charters  of  some  of  the  smaller  cities.  The  report  repels  the  charge  that  this 
proposal  is  inconsistent  with  the  general  recognition  of  the  value  of  universal 
suffrage  hy  saying,  "  No  surer  method  could  he  devised  to  hring  the  principle 
of  universal  suffrage  into  discredit  and  prepare  the  way  for  its  overtlirow  than 
to  pervert  it  to  a  use  for  which  it  was  never  intended,  and  suhject  it  to  a  ser- 
vice which  it  is  iucapahle  of  performing.  ...  To  expect  frugality  and  economy 
in  tinancial  concerns  from  its  operation  in  great  cities,  where  perliaps  half  of 
the  inhahitants  feel  no  interest  in  these  ohjccts,  is  to  suhject  the  principle  to  a 
strain  wliich  it  cannot  hear.  All  the  friends  of  the  system  should  unite  in  res- 
cuing it  from  such  perils." —  Page  40. 


646  THE   STATE   GOVERNMENTS  part  ii 

it,  appealing  to  the  example  of  Australia,  wliere  it  is  said  to 
have  worked  well. 

Among  the  other  reforms  in  city  government  which  I  find 
canvassed  in  America  are  the  following  :  — 

(a)  Civil  service  reform,  i.e.  the  establishment  of  examina- 
tions as  a  test  for  admission  to  posts  under  the  city,  and  the 
bestowal  of  these  posts  for  a  fixed  term  of  years,  or  generally 
during  good  behaviour,  instead  of  leaving  the  civil  servant  at 
the  mercy  of  a  partisan  chief,  who  may  displace  him  to  make 
room  for  a  party  adherent  or  personal  friend. 

(&)  The  lengthening  of  the  terms  of  service  of  the  mayor 
and  the  heads  of  departments,  so  as  to  give  them  a  more 
assured  position  and  diminish  the  frequency  of  elections. — 
This  has  been  done  to  some  extent  in  recent  charters  —  witness 
St.  Louis  (see  last  preceding  chapter)  and  Philadelphia. 

(c)  The  vesting  of  almost  autocratic  executive  power  in  the 
mayor  and  restriction  of  the  city  legislature  to  purely  legisla- 
tive work  and  the  voting  of  supplies.  —  This  also  finds  place 
in  recent  charters,  notably  in  that  of  Brooklyn,  and  has  worked, 
on  the  whole,  well.  It  is,  of  course,  a  remedy  of  the  "  cure  or 
kill"  order.  If  the  people  are  thoroughly  roused  to  choose  an 
able  and  honest  man,  the  more  power  he  has  the  better ;  it  is 
safer  in  his  hands  than  in  those  of  city  councils.  If  the  voters 
are  apathetic  and  let  a  bad  man  slip  in,  all  may  be  lost  till  the 
next  election.  I  do  not  say  "  all  is  lost,"  for  there  have  been 
remarkable  instances  of  men  who  have  been  sobered  and  ele- 
vated by  power  and  resj)onsibility.  The  Greek  proverb  "office 
will  show  the  man  "  was  generally  taken  in  an  unfavourable 
sense.  The  proverb  of  the  steadier  headed  Germans,  "  office 
gives  understanding"  (Amt  gibt  Verstand) ,  represents  a  more 
hopeful  view  of  human  nature,  and  one  not  seldom  justified  in 
American  experience. 

{d)  The  election  of  a  city  legislature,  or  one  branch  of  it,  or 
of  a  school  committee,  on  a  general  ticket  instead  of  by  wards. 
—  When  aldermen  or  councilmen  are  chosen  by  the  voters  of  a 
small  local  area,  it  is  assumed,  in  the  United  States,  that  they 
must  be  residents  within  it ;  thus  the  field  of  choice  among 
good  citizens  generally  is  limited.  It  follows  also  that  their 
first  duty  is  deemed  to  be  to  get  the  most  they  can  for  their 
own  ward ;  they  care  little  for  the  general  interests  of  the  city, 


CHAP.  LI       THE   WORKING  OF  CITY  GOVERNMENTS  647 

and  carry  on  a  game  of  barter  in  contracts  and  public  improve- 
ments with  the  representatives  of  other  wards.  Hence  the 
general  ticket  system  is  preferable. 

(e)  The  limitation  of  taxing  powers  and  borrowing  powers 
by  reference  to  the  assessed  value  of  the  taxable  property 
within  the  city. — Eestrictions  of  this  nature  have  been  largely 
applied  to  cities  as  well  as  to  counties  and  other  local  author- 
ities. The  results  have  been  usually  good,  yet  not  uniformly 
so,  for  evasions  may  be  practised.  The  New  York  commis- 
sion say :  ''  The  apparent  prohibition,  both  as  to  taxation  and 
the  percentage  of  debt,  could  be  readily  evaded  by  raising  the 
assessment.  Such  restrictions  do  not  attempt  to  prevent  the 
wastefulness  or  embezzlement  of  the  public  funds  otherwise 
than  by  limiting  the  amount  of  the  funds  subject  to  depreda- 
tion. The  effect  of  such  measures  would  simply  be  to  leave 
the  public  necessities  without  adequate  provision."  ^  And 
Messrs.  Allinson  and  Penrose  observe  — 

"By  the  Constitution  of  1874  it  is  provided  tliat  the  debt  of  a  county, 
city,  borough,  township,  or  school  district  shall  never  exceed  7  per  cent 
on  the  assessed  value  of  the  taxable  property  therein.  This  provision  was 
intended  to  prevent'  the  encumbering  of  the  property  of  any  citizen  for 
public  purposes  to  a  gi-eater  extent  tlian  7  per  cent.  In  its  workings  it 
has  been  au  absolute  failure.  In  every  city  of  the  State,  except  Philadel- 
phia, the  city  is  part  of  the  county  government.  The  county  has  power 
to  borrow  to  the  extent  of  7  per  cent :  so  has  the  city :  so  has  the  general 
school  district:  so  has  the  ward  school  district — making  28  per  cent  in 
all,  which  can  be  lawfully  imposed,  and  has  been  authorized  by  the  Act 
of  1874.  But  there  is  still  another  cause  of  failure  to  which  Philadelphia 
is  more  peculiarly  liable.  In  order  to  evade  the  provision  of  the  Consti- 
tution limiting  the  power  to  contract  debts  to  7  per  cent,  the  assessed  value 
of  property  in  nearly  every  city  of  the  State  was  largely  increased  —  in 
some  instances,  incredible  as  it  may  seem,  to  the  extent  of  1000  per  cent. 
It  is  therefore  clear  that  no  sufficient  protection  against  an  undue  increase 
of  municipal  debt  can  be  found  in  constitutional  and  legislative  provisions 
of  this  kind."  —  Philadelphia,  a  History  of  Municipal  Development  (1887), 
p.  276. 

Nevertheless,  such  restrictions  are  now  often  found  embodied 
in  State  constitutions,  and  have  usually,  so  far  as  I  could  ascer- 
tain, diminished  the  evil  they  are  aimed  at.^ 

1  Another  disadvantage  is  that  such  restriction  may  sometimes  compel  a 
public  improvement  to  be  executed  piecemeal  which  could  be  executed  more 
cheaply  if  done  all  at  once.    See  Chapter  XLHI. 

2  See  note  in  Appendix  at  the  end  of  this  volume. 


648  THE   STATE   GOVERNMENTS  part  n 

I  must  not  attempt  to  discuss  the  interesting  question  of  the 
results  of  entrusting  to  city  governments  the  supply  of  water, 
gas,  and  electricity,  perhaps  also  street  railways,  because  Amer- 
ican cities  are  accumulating  such  a  mass  of  experience  on  the 
subject  that  it  could  not  be  dealt  with  save  at  considerable 
length,  while  the  wise  still  differ  as  to  the  general  conclusions 
to  be  formed.^  The  objections  to  placing  this  function  in  the 
Imnds  of  such  men  as  rule  most  municipalities  are  obvious. 
One  group  of  these  objections  will  be  found  illustrated  in  a 
later  chapter,  describing  the  Gas  Ring  in  Philadelphia.  There 
are,  however,  some  reformers  canguine  enough  to  believe  that 
when  city  councils  obtain  functions  whose  exercise  has  a  strong 
and  obvious  interest  for  the  citizens,  the  latter  are  roused  to  a 
more  active  and  watchful  control,  and  may  be  counted  on  to 
eject  corrupt  politicians  from  power.  Nor  must  we  forget 
that  the  plan  of  leaving  the  function  to  private  corporate  com- 
panies is  open  to  evils  scarcely  less  patent  than  those  which 
flow  from  dishonest  management,  because  these  companies 
when  they  prosper  and  grow  large  bring  their  wealth  to  bear 
upon  the  municipal  authorities,  and  have  even  been  known  to 
scatter  bribes  widely  among  the  voters  for  the  sake  of  retain- 
ing or  extending  their  monopoly.  It  is  not  the  least  among 
the  many  mischiefs  entailed  by  the  pollution  of  city  govern- 
ments that  citizens  who  resent  the  high  prices  charged  and 
poor  supply  given  by  private  companies  often  prefer  to  bear 
these  hardships  and  to  wink  at  the  impure  methods  which 
some  companies  employ  rather  than  face  the  risk  of  throwing 
to  the  Eings  that  control  the  larger  municipalities  the  addi- 
tional mass  of  patronage  and  additional  material  for  jobbery 
which  the  business  of  water  and  gas  supj)ly  carries  with  it. 

The  question  of  city  government  is  that  which  chiefly  occu- 
pies practical  publicists,  because  it  is  admittedly  the  weakest 
point  of  the  country.  That  adaptability  of  the  institutions  to 
the  people  and  their  conditions,  which  judicious  strangers  have 
been  wont  to  admire  in  the  United  States,  and  that  consequent 
satisfaction  of  the  people  with  their  institutions,  which  con- 
trasts so  agreeably  with  the  discontent  of  European  nations, 
is  wholly  absent  as  regards  municipal  administration.     Wher- 

1  Of  about  160  cities  with  a  population  exceeding  20,000,  water  supply  is  in 
59  left  to  private  corporations,  and  in  101  belongs  to  the  municipality. 


CHAP.  LI       THE   WORKING   OF   CITY   GOVERNMENTS  G49 

ever  there  is  a  large  city  there  are  loud  complaints,  and  Ameri- 
cans who  deem  themselves  in  other  respects  a  model  for  the 
Old  World  are  in  this  respect  anxious  to  study  Old  World 
models,  those  particularly  which  the  cities  of  Great  Britain 
present.  The  best  proof  of  dissatisfaction  is  to  be  found  in  the 
frequent  changes  of  system  and  method.  What  Dante  said  of 
his  own  city  may  be  said  of  the  cities  of  America :  they  are  like 
the  sick  man  who  finds  no  rest  upon  his  bed,  but  seeks  to  ease 
his  pain  by  turning  from  side  to  side.  Every  now  and  then 
the  patient  finds  some  relief  in  a  drastic  remedy,  such  as  the 
enactment  of  a  new  charter  and  the  expulsion  at  an  election  of 
a  gang  of  knaves.  Presently,  however,  the  weak  points  of  the 
charter  are  discovered,  the  State  legislature  again  begins  to 
interfere  by  special  acts ;  civic  zeal  grows  cold  and  allows  bad 
men  to  creep  back  into  the  chief  posts ;  Federal  issues  are 
allowed  to  supersede  at  municipal  elections  that  Avhich  ought 
to  be  always  deemed  the  real  issue,  the  character  and  capacity 
of  the  candidates  for  ofiice.  All  this  is  discouraging.  Yet  no 
one  who  studies  the  municipal  history  of  the  last  decades  will 
doubt  that  things  are  better  than  they  were  twenty-five  years 
ago.  The  newer  frames  of  government  are  an  improvement 
upon  the  older.  Rogues  are  less  audacious.  Good  citizens  are 
more  active.  Party  spirit  is  still  permitted  to  dominate  and 
pervert  municipal  politics,  yet  the  mischief  it  does  is  more 
clearly  discerned  and  the  number  of  those  who  resist  it  daily 
increases.  In  the  increase  of  that  number  and  the  growth  of 
a  stronger  sense  of  civic  duty  rather  than  in  any  changes  of 
mechanism,  lies  the  ultimate  hope  for  the  reform  of  city  gov- 
ernments. 


CHAPTER   LII 

AN    AMERICAN    VIEW    OF    MUNICIPAL    GOVERNMENT    IN    THE 
UNITED    STATES  ^ 

By  the  Hon.  Seth  Low,  President  of  Columbia  College,  New  York,  and 
formerly  Mayor  of  the  City  of  Brooklyn 

A  CITY  in  the  United  States  is  quite  a  different  thing  from 
a  city  in  its  technical  sense,  as  the  word  is  used  in  England. 
In  England  a  city  is  usually  taken  to  be  a  place  which  is  or 
has  been  the  seat  of  a  bishop.^  The  head  of  a  city  govern- 
ment in  England  is  a  mayor,  but  many  boroughs  which  are  not 
cities  are  also  governed  by  a  mayor.  In  the  United  States  a 
city  is  a  place  which  has  received  a  charter  as  a  city  from  the 
legislature  of  its  State.  In  America  there  is  nothing  whatever 
corresponding  to  the  English  borough.  Whenever  in  the 
United  States  one  enters  a  place  that  is  presided  over  by  a 
mayor,  he  may  generally  understand  that  he  is  in  a  city ;  save 
that  here  and  there  incorporated  villages  have  mayors. 

Any  European  student  of  politics  who  wishes  to  understand 
the  problem  of  government  in  the  United  States,  whether  of 
city  government  or  any  other  form  of  it,  must  first  of  all 
transfer  himself,  if  he  can,  to  a  point  of  view  precisely  the 
opposite  of  that  which  is  natural  to  him.  This  is  scarcely,  if 
at  all,  less  true  of  the  English  than  of  the  continental  student. 
In  England  as  upon  the  continent,  from  time  immemorial, 
government  has  descended  from  the  top  down.  Until  recently, 
society  in  Europe  has  accepted  the  idea,  almost  without  pro- 
test, that  there  must  be  governing  classes,  and  that  the  great 

1  This  chapter  is  copyright,  by  Seth  Low,  1888. 

2  In  Scotland,  where  there  have  been,  since  the  Revolution,  no  bishops, 
Edinburgh,  Glasgow,  Aberdeen,  and  now  (1889)  Dundee  are  described  as  cities. 
In  England  Westminster  is  called  a  city.  It  had,  however,  for  a  short  time,  a 
bishop. 

650 


CHAP.  Lu  MUNICIPAL   GOVERNMENT  651 

majority  of  men  must  be  governed.  The  French  Revolution 
doubtless  modified  this  idea  everyAvhere,  and  especially  in 
France,  but  even  in  France  public  sentiment  on  this  point  is  a 
resultant  of  a  conflict  of  views.  In  the  United  States,  how- 
ever, that  idea  does  not  obtain  at  all,  and,  what  is  of  scarcely 
less  importance,  it  never  has  obtained.  No  distinction  is 
recognized  of  governing  and  governed  classes,  and  the  problem 
of  government  is,  in  effect,  an  effort  on  the  part  of  society  as 
a  whole  to  learn  and  apply  to  itself  the  art  of  government. 
Bearing  this  in  mind,  it  becomes  apparent  that  the  immense 
tide  of  immigration  into  the  United  States  is  a  continually 
disturbing  factor.  The  immigrants  come  from  many  countries, 
a  very  large  proportion  of  them  being  of  the  classes  which,  in 
their  old  homes,  from  time  ovit  of  mind,  have  been  governed. 
Arriving  in  America,  they  shortly  become  citizens  in  a  society 
which  undertakes  to  govern  itself.  However  well-disposed 
they  may  be  as  a  rule,  they  have  not  had  experience  in  self- 
government,  nor  do  they  always  share  the  ideas  which  have 
expressed  themselves  in  the  Constitution  of  the  United  States. 
This  foreign  element  settles  largely  in  the  cities  of  the  coun- 
try. It  is  estimated  that  the  population  of  New  York  City 
contains  eighty  per  cent  of  people  who  either  are  foreign-born, 
or  who  are  the  children  of  foreign-born  parents.  Consequently, 
in  a  city  like  New  York,  the  problem  of  learning  and  applying 
the  art  of  government  is  handed  over  to  a  population  that 
begins  in  point  of  experience  very  low  down.  In  many  of 
the  cities  of  the  United  States,  indeed  in  almost  all  of  them, 
the  population  not  only  is  thus  largely  untrained  in  the  art  of 
self-government,  but  it  is  not  even  homogeneous.  So  that  an 
American  city  is  confronted  not  only  with  the  necessity  of  in- 
structing large  and  rapidly-growing  bodies  of  people  in  the  art 
of  government,  but  it  is  compelled  at  the  same  time  to  assimi- 
late strangely  different  component  parts  into  an  American 
community.  It  will  be  apparent  to  the  student  that  either 
one  of  these  functions  by  itself  would  be  difficult  enough. 
AYhen  both  are  found  side  by  side  the  problem  is  increasingly 
difficult  as  to  each.  Together  they  represent  a  problem  such 
as  confronts  no  city  in  the  United  Kingdom,  or  in  Europe. 

The  American  city  has  had  problems  to  deal  with  also  of  a 
material  character,  quite  different  from  those  which  have  con- 


652  THE   STATE  GOVERNMENTS  part  ii 

fronted  the  cities  of  the  Old  World.  With  the  exception  of 
Boston,  Philadelphia,  Baltimore,  New  Orleans,  and  New  York, 
there  is  no  American  city  of  great  consequence  whose  roots  go 
back  into  the  distant  past  even  of  America.  American  cities 
as  a  rule  have  grown  with  a  rapidity  to  which  the  Old  World 
presents  few  parallels.  London,  in  the  extent  of  its  growth, 
but  not  in  the  proportions  of  it,  Berlin  since  1870,  and  Rome 
in  the  last  few  years,  are  perhaps  the  only  places  in  Europe 
which  have  been  compelled  to  deal  with  this  element  of  rapid 
growth  in  anything  like  a  corresponding  degree.  All  of  these 
cities,  London,  Berlin,  and  Rome,  are  the  seats  of  the  national 
government,  and  receive  from  that  source  more  or  less  help  and 
guidance  in  their  development.  In  all  of  them  an  immense 
nucleus  of  wealth  existed  before  this  great  and  rapid  growth 
began.  The  problem  in  America  has  been  to  make  a  great 
city  in  a  few  years  out  of  nothing.  There  has  been  no  nucleus 
of  wealth  upon  which  to  found  the  structure  which  every  suc- 
ceeding year  has  enlarged.  Recourse  has  been  had  of  neces- 
sity, under  these  conditions,  to  the  freest  use  of  the  public 
credit.  The  city  of  Brooklyn  and  the  city  of  Chicago,  each 
with  a  population  now  (1892)  of  about  a  million  of  people,^ 
are  but  little  more  than  fifty  years  old.  In  that  period  every- 
thing has  been  created  out  of  the  fields.  The  houses  in  which 
the  people  live,  the  water-works,  the  paved  streets,  the  sewers, 
everything  which  makes  up  the  permanent  plant  of  a  city,  all 
have  been  produced  while  the  city  has  been  growing  from  year 
to  year  at  a  fabulous  rate.  Besides  these  things  are  to  be 
reckoned  the  public  schools,  the  public  parks,  and  in  the  case 
of  Brooklyn,  the  great  bridge  connecting  it  with  New  York, 
two-thirds  of  the  cost  of  which  is  borne  by  Brooklyn.  Looked 
at  in  this  light  the  marvel  would  seem  to  be,  not  so  much  that 
the  American  cities  are  justly  criticizable  for  many  defects,  but 
rather  that  results  so  great  have  been  achieved  in  so  short  a 
time.  The  necessity  of  doing  so  much  so  quickly,  has  worked 
to  the  disadvantage  of  the  American  city  in  two  ways.  First. 
it  has  compelled  very  lavish  expenditure  under  great  pressure 
for  quick  results.  This  is  precisely  the  condition  under  which 
the  best  trained  business  men  make  their  greatest  mistakes, 
and  are  in  danger  of  running  into  extravagance  and  wasteful- 
1  Chicago  has  more  than  1,000,000,  aud  Brooklyn  over  900,000. 


CHAP.  Lii  MUNICIPAL   GOVERNMENT  653 

ness.  ]S"o  candid  American  will  deny  that  American  cities 
have  suffered  largely  in  this  way,  not  alone  from  extravagance 
and  wastefulness,  but  also  from  dishonesty ;  but  in  estimating 
the  extent  of  the  reproach,  it  is  proper  to  take  into  considera- 
tion these  general  conditions  under  which  the  cities  have  been 
comi)elled  to  work.  The  second  disadvantage  which  American 
cities  have  laboured  under  from  this  state  of  things  has  been 
their  inability  to  provide  adeqxiately  for  their  current  needs, 
while  discounting  the  future  so  freely  in  order  to  provide  their 
permanent  plant.  When  the  great  American  cities  have  paid 
for  the  permanent  plant  which  they  have  been  accumulating 
during  the  last  half  century,  so  that  the  duty  which  lies  before 
them  is  chiefly  that  of  caring  adequately  for  the  current  life  'of 
their  population,  a  vast  improvement  in  all  these  particulars 
may  reasonably  be  expected.  In  other  words,  time  is  a  neces- 
sary element  in  making  a  great  city,  as  it  is  in  every  other 
great  and  enduring  work.  American  cities  are  judged  by  their 
size  rather  than  by  the  time  which  has  entered  into  their 
growth.  It  cannot  be  denied  that  larger  results  could  have 
been  produced .  with  the  money  expended  if  it  always  had 
been  used  with  complete  honesty  and  good  judgment.  But  to 
make  an  intelligent  criticism  upon  the  American  cit}^,  in  its 
failures  upon  the  material  side,  these  elements  of  difficulty 
must  be  taken  into  consideration. 

Another  particular  in  which  the  American  cit}^  may  be 
thought  to  have  come  short  of  what  might  have  been  hoped 
for,  may  be  described  in  general  terms  as  a  lack  of  foresight. 
It  would  have  been  comparatively  easy  to  have  preserved  in 
all  of  them  small  open  parks,  and  generally  to  have  made  them 
more  beautiful,  if  there  had  been  a  greater  appreciation  of  the 
need  for  these  things  and  of  the  growth  the  cities  were  to 
attain  to.  The  western  cities  probably  have  erred  in  this 
regard  less  than  those  upon  the  Atlantic  coast.  But  while  it 
is  greatly  to  be  regretted  that  this  large  foresight  has  not 
been  displayed,  it  is  after  all  only  repeating  in  America  what 
has  taken  place  in  Europe.  The  improvement  of  cities  seems 
everywhere  to  be  made  by  tearing  down  and  replacing  at  great 
cost,  rather  than  by  a  far-sighted  provision  for  the  demands 
and  opportunities  of  the  future.  These  unfortunate  results 
in  America  have  flowed  largely  from  two  causes  :    flrst,  from 


654  THE    STATE   GOVERNMENTS  pakt  ii 

inability  on  the  part  of  the  cities  to  appreciate  in  advance  the 
phenomenal  growth  that  has  come  upon  them ;  and  second, 
from  the  frequent  teiidency  of  population  to  grow  in  precisely 
the  direction  where  it  was  not  expected  to.  A  singular  illus- 
tration of  this  last  factor  is  to  be  found  in  the  city  of  Wash- 
ington. The  Capitol  was  made  to  face  towards  the  east,  under 
the  impression  that  population  would  settle  in  that  direction. 
As  matter  of  fact  the  city  has  grown  towards  the  west,  so  that 
the  Capitol  stands  with  its  back  to  the  city  and  faces  a  district 
that  is  scarcely  built  upon  at  all. 

Probably  no  detail  strikes  the  eye  of  the  foreigner  more  un- 
favourably in  connection  with  the  average  American  city  than 
thfe  poor  paving  of  the  streets  and  their  lack  of  cleanliness. 
The  comparison  with  cities  of  Europe  in  these  respects  is 
immensely  to  the  disadvantage  of  the  American  city.  But,  in 
this  connection,  it  is  not  unfair  to  call  attention  to  the  fact 
that  the  era  of  good  paving  and  clean  streets  in  Europe  is 
scarcely  more  than  thirty  years  old.  Poor  as  is  the  condition 
of  the  streets  in  most  American  cities  now,  it  would  be  risking 
very  little  to  say  that  it  would  average  much  higher  than  ten 
years  ago.  There  are  several  contributing  causes  which  are 
reflected  in  this  situation  that  represent  difficulties  from  which 
most  European  cities  are  free.  In  the  first  place,  frost  strikes 
much  deeper  in  America,  and  is  more  trying  to  the  pavements 
in  every  way.  In  the  next  place,  the  streets  are  more  often 
disturbed  in  connection  with  gas  pipes,  steam  pipes,  and 
telegraph  service,  than  in  European  cities.  But,  apart  from 
these  incidental  difficulties,  the  fundamental  trouble  in  con- 
nection with  the  streets  of  American  cities  is  the  lack  of 
sufficient  appropriations  to  put  them  in  first-class  condition 
and  to  keep  them  so,  both  as  to  paving  and  as  to  cleaning. 
The  reason  for  this  has  been  pointed  out. 

All  the  troubles,  however,  which  have  marked  the  develop- 
ment of  cities  in  the  United  States  are  not  due  to  these  causes. 
Cities  in  the  United  States,  as  forms  of  government,  are  of 
comparatively  recent  origin.  The  city  of  Boston,  for  example, 
in  the  State  of  Massachusetts,  although  the  settlement  was 
founded  more  than  two  hundred  and  fifty  years  ago,  received 
its  charter  as  a  city  so  recently  as  1822.  The  city  of  Brooklyn 
received  its  charter  from  the  State  of  New  York  in  1835.     In 


CHAF.  Lii  MUNICIPAL   GOVERNMENT  655 

other  words,  the  transition  from  village  and  town  government 
into  government  by  cities,  has  simply  followed  the  transition 
of  small  places  into  large  communities.  This  suggests  another 
distinction  between  the  cities  of  the  United  States  and  those 
of  Great  Britain.  The  great  cities  of  England  and  of  Europe, 
with  few  exceptions,  have  their  roots  in  the  distant  past. 
Many  of  their  privileges  and  chartered  rights  were  wrested 
from  the  Crown  in  feudal  times.  Some  of  these  privileges 
have  been  retained,  and  contribute  to  the  income,  the  pride, 
and  the  influence  of  the  municipality.  The  charter  of  an 
American  city  represents  no  element  of  prestige  or  inspiration. 
It  is  only  the  legal  instrument  which  gives  the  community  au- 
thority to  act  as  a  corporation,  and  which  defines  the  duties  of 
its  officers.  The  motive  for  passing  from  town  government  to 
city  government  in  general  has  been  the  same  everywhere  — 
to  acquire  a  certain  readiness  of  action,  and  to  make  more 
available  the  credit  of  the  community  in  order  to  provide  ade- 
quately for  its  own  growth.  The  town  meeting,  in  which 
every  citizen  takes  part,  serves  its  purpose  admirably  in  com- 
munities up  to  a  certain  size,  or  for  the  conducting  of  public 
work  on  not  too  large  a  scale.  But  the  necessity  for  efficiency 
in  providing  for  the  needs  of  growth  has  compelled  rapidly- 
growing  communities,  in  all  the  States,  to  seek  the  powers 
of  a  corporation  as  administered  through  a  city  government. 
Growing  thus  out  of  the  town,  it  happened  very  naturally  that 
the  first  conception  of  the  city  on  the  part  of  Americans  was 
that  which  had  applied  to  the  town  and  the  village  as  local  subdi- 
visions of  the  commonwealth.  Charters  were  framed  as  though 
cities  were  little  states.  Americans  are  only  now  learning, 
after  many  years  of  bitter  experience,  that  they  are  not  so 
much  little  states  as  large  corporations.  Many  of  the  mistakes 
which  have  marked  the  progress  of  American  cities  up  to  this 
point  have  sprung  from  that  defective  conception.  The  aim 
deliberately  was,  to  make  a  city  government  where  no  officer 
by  himself  should  have  power  enough  to  do  much  harm.  The 
natural  result  of  this  was  to  create  a  situation  where  no  officer 
had  power  to  do  much  good.  Meanwhile  bad  men  united  for 
corrupt  purposes,  and  the  whole  organization  of  the  city  gov- 
ernment aided  such  in  throwing  responsibility  from  one  to 
another.     Many  recent  city  charters  in  the  United  States  pro- 


656  THE   STATE   GOVERNMENTS  part  ii 

ceed  upon  the  more  accurate  theory  that  cities,  in  their  organic 
capacity,  are  chiefly  large  corporations.  The  better  results 
flowing  from  this  theory  are  easily  made  clear.  Americans 
are  sufficiently  adept  in  the  administration  of  large  business 
enterprises  to  understand  that,  in  any  such  undertaking,  some 
one  man  must  be  given  the  power  of  direction  and  the  choice 
of  his  chief  assistants ;  they  understand  that  power  and 
responsibility  must  go  together  from  the  top  to  the  bottom  of 
every  successful  business  organization.  Consequently,  when 
it  began  to  be  realized  that  a  city  was  a  business  corporation 
rather  than  an  integral  part  of  the  State,  the  unwillingness  to 
organize  the  city  upon  the  line  of  concentrated  power  in  con- 
nection with  concentrated  responsibility  began  to  disappear. 
The  charter  of  the  city  of  Brooklyn  is  probably  as  advanced  a 
type  as  can  be  found  of  the  results  of  this  mode  of  thinking. 
In  Brooklyn  the  executive  side  of  the  city  government  is 
represented  by  the  mayor  and  the  various  heads  of  depart- 
ments. The  legislative  side  consists  of  a  common  council  of 
nineteen  members,  twelve  of  whom  are  elected  from  three 
districts  each  having  four  aldermen,  the  remaining  seven  being 
elected  as  aldermen  at  large  by  the  whole  city.  The  people 
elect  three  city  officers  besides  the  board  of  aldermen ;  the 
mayor,  who  is  the  real,  as  well  as  the  nominal,  head  of  the 
city;  the  comptroller,  who  is  practically  the  book-keeper  of 
the  city;  and  the  auditor,  whose  audit  is  necessary  for  the 
payment  of  every  bill  against  the  city  whether  large  or  small. 
The  mayor  appoints  absolutely,  without  confirmation  by  the 
common  council,  all  the  executive  heads  of  departments.  He 
appoints,  for  example,  the  police  commissioner,  the  fire  com- 
missioner, the  health  commissioner,  the  commissioner  of  city 
works,  the  corporation  counsel  or  counsellor  at  law,  the  city 
treasurer,  the  tax  collector,  and  in  general  all  the  officials  who 
are  charged  with  executive  duties.  These  officials  in  turn 
appoint  their  own  subordinates,  so  that  the  principle  of  defined 
responsibility  permeates  the  city  government  from  top  to 
bottom.  The  mayor  also  appoints  the  board  of  assessors,  the 
board  of  education,  and  the  board  of  elections.  The  executive 
officers  appointed  by  the  mayor  are  appointed  for  a  term  of 
two  years,  that  is  to  say  for  a  term  similar  to  his  own.  The 
mayor  is  elected  at  the  general  election  in  ISlovember ;  he  takes 


CHAP.  Lii  MUNICIPAL   GOVERNMENT  657 


office  on  the  first  of  January  following,  and  for  one  month  the 
great  departments  of  the  city  are  carried  on  for  him  by  the 
appointees  of  his  predecessor.  On  the  first  of  February  it 
becomes  his  duty  to  appoint  his  own  heads  of  departments,  and 
inasmuch  as  they  serve  for  the  same  term  as  himself,  each 
incoming  mayor  thus  has  the  opportunity  to  make  an  adminis- 
tration in  all  its  parts  in  sympathy  with  himself.  Each  one 
of  these  great  executive  departments  is  under  the  charge  of  a 
single  head,  the  charter  of  the  city  conforming  absolutely  to 
the  theory  that  where  executive  work  is  to  be  done  it  should 
be  committed  to  the  charge  of  one  man.  Where  boards  of 
officials  exist  in  Brooklyn,  it  is  because  the  Avork  committed 
to  them  is  discretionary  more  than  it  is  executive  in  character. 
These  boards,  also,  are  appointed  by  the  mayor  without  con- 
firmation by  the  board  of  aldermen,  but  they  are  appointed 
for  terms  not  coterminous  with  his  own;  so  that,  in  most 
cases,  no  mayor  would  appoint  the  whole  of  any  such  board 
unless  he  were  to  be  twice  elected  by  the  people.  In  other 
words,  with  quite  unimportant  exceptions,  the  charter  of 
Brooklyn,  a  city  with  900,000  inhabitants,  makes  the  mayor 
entirely  responsible  for  the  conduct  of  the  city  government  on 
its  executive  side,  and,  in  holding  him  to  this  responsibility, 
equips  him  fearlessly  with  the  necessary  power  to  discharge 
his  trust.  This  charter  went  into  effect  on  the  first  of  January 
1882.  It  has  been  found  to  have  precisely  the  merits  and  the 
defects  which  one  might  expect  of  such  an  instrument.  A 
strong  executive  can  accomplish  satisfactory  results ;  a  weak 
one  can  disappoint  every  hope.  The  community,  however,  is 
so  well  satisfied  that  the  charter  is  a  vast  improvement  on  any 
system  which  it  has  tried  before,  that  no  voice  is  raised  against 
it.  It  has  had  one  notable  and  especially  satisfactory  effect. 
It  can  be  made  clear  to  the  simplest  citizen  that  the  entire 
character  of  the  city  government  for  two  years  depends  upon 
the  man  chosen  for  the  office  of  mayor.  As  a  consequence 
more  people  have  voted  in  Brooklyn  on  the  subject  of  the 
mayoralty  than  have  voted  there  as  to  who  should  be  Gov- 
ernor of  the  State.  This  is  a  great  and  a  direct  gain  for  good 
city  government,  because  it  creates  and  keeps  alert  a  strong 
public  sentiment,  and  tends  to  increase  the  interest  of  all 
citizens  in  the  affairs  of  their  city.  In  the  absence  of  a  his- 
VOL.  I  2  u 


658  THE   STATE   GOVERNMENTS  part  ii 

toric  past  which  ministers  to  civic  pride,  and  in  the  presence 
of  many  thousands  of  new-comers  at  every  election,  this  effect 
is  especially  valuable.  It  may  also  be  said  that  under  present 
conditions  the  voting  is  more  intelligent  than  formerly.  The 
issue  is  so  important,  yet  so  simple,  that  it  can  be  made  clear 
even  to  people  who  have  lived  but  a  short  time  in  the  city. 
The  same  influences  tend  to  secure  for  the  city  the  services, 
as  mayor,  of  a  higher  grade  of  men,  because  under  such  a 
charter  the  mayor  is  given  power  and  opportunity  to  accom- 
plish something.  It  appeals  to  the  best  that  is  in  a  man  as 
strongly  as  it  exposes  him  to  the  fire  of  criticism  if  he  does 
not  do  well. 

In  undertaking  to  administer  this  charter,  as  the  first  mayor 
to  whom  such  powers  had  been  committed,  the  writer  adopted 
two  principles  which  he  believed  to  be  essential  to  success. 
In  the  first  place,  he  determined  to  hold  each  head  of  depart- 
ment responsible  for  results  within  his  department ;  and  in  the 
second  place,  he  determined  to  hold  himself  entirely  aloof  from 
the  use  of  patronage,  except  in  so  far  as  the  charter  of  the  city, 
in  express  terms,  made  it  his  duty  to  make  appointments.  The 
effect  of  this  attitude  towards  his  appointees  was  to  leave  them 
entirely  free  in  the  choice  of  their  subordinates.  Being  free, 
they  could  justly  be  held  responsible,  to  the  fullest  extent,  for 
results.  Further  than  that,  being  free  from  pressure  from  the 
mayor,  they  were  much  stronger  to  resist  pressure  as  to  pat- 
ronage from  outsiders,  than  otherwise  they  would  have  been. 
Another  effect  of  the  mayor's  attitude  with  reference  to  pat- 
ronage, was  to  secure  for  himself  the  confidence  of  the  commu- 
nity, without  regard  to  party,  to  an  unusual  extent.  Any 
alarm  there  might  have  been,  as  to  the  use  of  the  great  and 
unusual  powers  committed  to  the  mayor  by  the  charter,  was 
quieted  at  once. 

The  duties  of  the  mayor  under  the  charter  may  be  consid- 
ered under  three  heads.  First,  in  his  relation  to  the  executive 
work  of  the  city ;  second,  in  his  relation  to  the  common  coun- 
cil or  local  legislature  ;  third,  in  his  relation  to  the  legislature 
of  the  State. 

The  successful  use  of  the  power  of  appointment,  in  the 
selection  of  efficient  heads  of  departments,  of  course  underlies 
the  success  of  a  city  administration  on  its  executive  side.    The 


CHAP.  Lii  MUNICIPAL   GOVERNMENT  659 

heads  of  departments  having  been  appointed,  it  was  the  custom 
of  the  writer  to  hold  a  meeting  in  the  mayor's  oflfice  with  all 
his  executive  apj)ointees,  once  every  week,  excepting  during 
the  summer  when  the  common  council  was  not  in  session. 
This  meeting  served  several  purposes.  The  minutes  of  the 
common  council  at  their  previous  meeting  were  laid  before  this 
informal  gathering,  and  the  mayor  received  the  advice  of  the 
officer  whose  department  would  be  affected  by  any  proposed 
resolution  or  ordinance,  as  to  its  probable  effect.  When  a 
question  was  brought  up  of  general  interest  to  the  city  the 
whole  company  discussed  it,  giving  to  the  mayor  the  advantage 
of  their  experience  and  judgment.  These  weekly  councils  were 
of  great  value  to  the  mayor,  in  determining  his  attitude  on  the 
various  questions  raised  during  his  term  by  the  common  coun- 
cil of  the  city,  every  resolution  of  which  body  had  by  law  to 
be  passed  upon  by  the  mayor,  and  receive  either  his  approval 
or  his  veto.  These  gatlierings  of  the  executive  officers  of  the 
city  were  useful  in  other  ways  than  this.  They  made  all  heads 
of  departments  personally  acquainted  Avith  each  other,  and 
converted  the  machinery  of  the  city  government,  from  sepa- 
rate and  independent  departments,  into  one  organization  work- 
ing in  complete  harmony  and  with  singleness  of  aim.  The 
mayor's  oversight  of  the  executive  work  of  the  city,  in  its  cur- 
rent aspect,  was  further  maintained  by  quarterly  reports  sub- 
mitted from  each  of  the  large  departments.  The  mayor's 
office,  in  an  American  city,  is  in  receipt  of  daily  complaints 
touching  this  or  that  matter  affecting  citizens.  The  receipt 
of  all  complaints  was  immediately  acknowledged  to  the  per- 
sons who  made  them,  if  they  came  by  mail,  and  the  com- 
plaints were  forwarded  at  once  to  the  proper  department  for 
action  or  explanation.  The  reply  was  made  to  the  mayor's 
office,  and  was  communicated  without  delay  to  the  maker  of 
the  complaint.  If  remedy  was  available,  this  method  secured 
its  prompt  application.  If  the  matter  were  beyond  reach  of 
remedy,  the  citizen  had  at  least  the  satisfaction  of  knowing 
why.  The  multiplicity  and  character  of  these  complaints 
gave  the  mayor  a  daily  insight  into  the  efficiency  of  the  de- 
partments. B}'  these  methods,  the  mayor  was  able  to  keep 
himself  almost  as  well  informed  as  to  the  work  in  each  depart- 
ment of  the  city  as  the  head  of   a  great  business  house  is 


660  THE   STATE   GOVERNMENTS  fart  ii 

informed  as  to  the  departments  into  which  his  business  is 
divided.  Nor  need  tlie  comparison  stop  there.  The  mayor 
was  able  to  bring  the  power  and  influence  of  his  office  to  bear, 
to  remedy  abuses  or  to  suggest  improvements  in  methods, 
with  the  same  directness  and  efficiency. 

The  mayor's  duties  in  relation  to  the  common  council  of  the 
city,  are  chiefly  in  connection  with  the  obligation,  laid  upon 
him  by  the  charter,  to  approve  or  disapprove  every  resolution 
passed  by  that  body.  The  mayor's  veto  is  fatal,  unless  over- 
ridden by  a  two-thirds  vote  of  all  the  members  elected  to  the 
council.  For  three  years  out  of  four  during  which  the  writer 
served  as  mayor,  the  common  council  was  politically  antago- 
nistic to  him,  half  of  the  time  in  the  proportion  of  fourteen  to 
five.  Notwithstanding  this,  only  two  vetoes  were  overridden 
in  the  whole  of  his  four  years  of  service.  Two  influences 
probably  contributed  to  this  result.  First,  the  care  with 
which,  under  the  advice  of  his  appointees,  the  mayor  took  up 
his  positions :  and  second,  the  mayor's  refusal  to  implicate 
himself,  in  any  way,  with  the  use  of  patronage.  Partisan 
opposition  largely  disappeared,  before  a  spirit  manifestly  free 
from  self-seeking  and  from  partisanship.  The  same  influences 
led  to  unusual  co-operation,  on  the  part  of  the  common  coun- 
cil, in  forwarding  the  plans  of  the  mayor  in  the  direction  of 
positive  action.  The  harmony  between  the  executive  and  the 
legislature  of  the  city  was  scarcely  less  complete,  during  this 
interval,  to  the  great  advantage  of  the  city,  than  was  the  har- 
mony between  the  different  executive  departments  themselves. 

The  relation  of  the  mayor  to  the  legislature  of  the  State 
proved  to  be  important  to  an  extent  not  easy  to  be  imagined. 
The  charter  of  a  city,  coming  as  it  does  from  the  legislature,  is 
entirely  within  the  control  of  the  legislature.  Just  as  there  is 
no  legal  bar  to  prevent  the  legislature  from  recalling  the  char- 
ter altogether,  so  there  is  no  feature  of  the  charter  so  minute 
that  the  legislature  may  not  assume  to  change  it.  In  the 
State  of  New  York  there  is  no  general  law  touching  the  gov- 
ernment of  cities,  and  the  habit  of  interference  in  the  details 
of  city  action  has  become  to  the  legislature  almost  a  second 
nature.  In  every  year  of  his  term,  the  writer  was  compelled 
to  oppose  at  Albany,  the  seat  of  the  State  legislature,  legisla- 
tion seeking  to  make  an  increase  in  the  pay  of  policemen  and 


CHAP.  Lii  MUNICIPAL   GOVERNMENT  661 

firemen,  without  any  reference  to  the  financial  ability  of  the 
city,  or  the  other  demands  upon  the  city  for  the  expenditure 
of  money.  Efforts  were  made,  also,  at  one  time,  to  legislate 
out  of  office  some  of  the  officials  who  had  been  appointed  in 
conformity  to  the  charter.  New  and  useless  offices  were 
sought  to  be  created,  and  the  mayor  found  that  not  the  least 
important  of  his  duties,  as  mayor,  was  to  protect  the  city  from 
unwise  and  adverse  legislation  on  the  part  of  the  State.  It  is 
a  curious  circumstance  that  most  of  these  propositions  had 
their  origin  with  members  of  the  legislature  elected  to  repre- 
sent different  districts  of  the  city  itself.  The  same  influ- 
ences which  made  the  administration  strong  with  the  common 
council,  at  home,  made  it  also  strong  with  the  legislature  at 
Albany,  so  that,  although  for  one  or  two  years  the  power  to 
make  changes  rested  with  a  majority  at  Albany  politically 
antagonistic,  no  law  objected  to  by  the  mayor,  during  this 
interval,  was  placed  upon  the  statute-book.  The  city  itself  is 
compelled  at  times  to  seek  legislation  for  the  enlargement  of 
its  powers ;  that  is  to  say,  the  powers  committed  to  a  city  are 
strictly  limited  to  those  defined  by  the  charter  or  granted  by 
special  acts  of  the  legislature.  Consequently,  when  an  unfore- 
seen situation  is  to  be  dealt  with,  calling  for  unusual  methods 
or  powers,  it  is  necessary  to  secure  authority  to  this  end  from 
the  legislature  of  the  State.  The  writer  found  the  same  gen- 
eral attitude,  which  has  been  referred  to  so  often,  effectual  in 
this  regard  also,  so  that  almost  every  bill  which  he  desired  in 
the  interest  of  the  city,  was  enacted  into  law,  and  this  alike 
by  legislatures  politically  in  sympathy  with  the  city  adminis- 
tration and  by  legislatures  politically  antagonistic  to  it.  It  is 
not  too  much  to  say,  however,  that  the  greatest  anxieties  of 
his  term  sprang  from  the  uncertainties  and  difficulties  of  this 
annual  contest,  on  the  one  hand  to  advance  the  interest  of  the 
city,  and  on  the  other  to  save  it  from  harm  in  its  relations  to 
the  law-making  power  of  the  State. 

Imitating  this  charter  of  Brooklyn,  the  city  of  Philadelphia, 
still  more  recently,  has  obtained  a  new  charter  involving  a 
great  departure  in  the  same  direction  from  old  methods.  Bos- 
ton and  New  York  both  have  moved  partly  along  the  same  line, 
each  with  admitted  advantage  to  the  city,  although  neither  has 
gone  so  far  as  Brooklyn  or  Philadelphia.    Several  smaller  places 


662  THE   STATE   GOVERNMENTS  part  n 

have  obtained  cliarters  of  the  same  kind.  It  is  not  to  be  sup- 
posed that  this  new  form  of  city  charter  is  the  result  alto- 
gether of  abstract  thinking.  It  has  grown  out  of  bitter  expe- 
riences. When  the  inhabitants  of  a  city  found  that  they  did 
not  receive,  as  matter  of  fact,  the  good  government  which  they 
desired,  it  did  not  at  first  occur  to  them  that  the  trouble  was 
to  a  large  extent  fundamental  in  their  form  of  charter ;  or, 
if  it  did,  the  first  effort  at  remedy  led  to  worse  mistakes  than 
before.  Starting  with  the  theory  that  the  path  to  safety  was 
through  division  of  power,  they  resorted  to  all  manner  of  ex- 
pedients which  Avould  compass  that  end.  They  established, 
for  instance,  police  boards  and  tire  boards,  which  at  different 
times  were  made  to  consist  of  three  members,  and  at  other 
times  of  four,  the  latter  being  known  in  American  parlance  as 
non-partisan.^  It  was  supposed  that  a  single  individual  might 
be  tempted  to  use  his  dejDartment  unfairly  in  the  interest  of 
the  party  to  Avhich  he  belonged,  but  that  by  associating  him 
with  others  of  different  parties  this  tendency  would  be  over- 
come. It  turned  out,  however,  that  the  moment  no  one  in 
particular  was  to  blame,  partisanship  took  complete  possession 
of  the  administration  of  every  department.  When  one  reflects 
that  in  the  Government  of  the  United  States  the  immense  ad- 
ministrative departments,  like  the  Treasury  and  the  Post-Oiifice, 
have,  from  the  beginning  of  the  Government,  been  committed 
to  the  care  of  a  single  man,  it  seems  strange  that,  in  their 
cities,  Americans  should  have  been  so  unwilling  to  proceed  upon 
the  same  theory.  The  reason  probably  is  that  the  city,  as 
above  pointed  out,  has  been  evolved  from  the  town  by  the 
simple  process  of  enlargement.  In  the  town  the  theory  of  di- 
vision of  power  has  been  acted  upon  with  substantial  uni- 
formity, and  in  small  communities  has  worked  well.  The 
attempt  to  act  upon  the  same  lines  in  the  great  and  rapidly- 
growing  cities  of  the  country  has,  in  the  judgment  of  many, 
been  as  instrumental  as  any  other  one  element  in  causing  the 
unsatisfactory  results  which  have  marked  the  progress  of 
many  American  cities.  For  the  purposes  of  this  chapter  it  is 
not  necessary  to  enlarge  further  upon  this  thought.  It  is  em- 
phasized thus  far  for  the  purpose  of  showing  that  all  the  large 

1  Non-partisan  practically  means  that  the  two  great  parties  are  equally  rep- 
resented upon  it. 


i 


CHAP.  Lii  MUNICIPAL   GOVERNMENT  663 

class  of  difficulties  which  American  cities  have  been  obliged 
to  face  by  reason  of  faulty  charters  are  not  irremediable.  The 
actual  process  of  change  from  one  system  of  charter  to  an- 
other has  been  marked  incidentally  by  one  unfortunate  effect. 
The  city  charter,  coming  as  it  does  from  the  legislature,  lies 
entirely  within  the  control  of  the  legislature.  The  many  ap- 
peals to  the  legislature  for  charter  amendment  of  one  kind 
and  another  have  bred  a  habit  in  some  of  the  States,  if  not 
in  all,  of  constant  interference  by  the  legislature  with  the 
local  details  of  city  action.  This  interference,  though  often 
prompted  by  a  genuine  desire  to  relieve  a  city  from  pressing 
evils,  has  tended  very  greatly  to  lessen  the  sense  of  responsi- 
bility on  the  part  of  local  officials,  and  upon  the  part  of 
communities  themselves.  It  is  one  of  the  best  effects  of 
Brooklyn's  charter,  that  it  has  helped  to  create  in  that  city  a 
very  decided  spirit  of  home  rule,  which  is  ready  to  protest  at 
any  moment  against  interference  on  the  part  of  the  State 
with  local  matters. 

It  remains  to  be  said  that  the  one  organic  problem  in  con- 
nection with  the  charters  of  cities,  which  apparently  remains 
as  far  from  solution  as  ever  in  America,  is  that  which  con- 
cerns the  legislative  branch  of  city  government.  In  some 
cities  the  legislative  side  is  represented  by  two  bodies,  or 
houses,  known  by  different  names  in  different  cities,  and  pre- 
senting the  same  general  characteristics  as  a  State  legislature 
with  its  upper  and  lower  house.  The  most  conspicuous  in- 
stances of  this  kind  are  furnished  by  the  city  of  Boston  and 
the  city  of  Philadelphia.  In  all  the  cities  of  New  York  State, 
the  legislative  branch  consists  of  a  single  chamber  indiffer- 
ently spoken  of  as  the  Board  of  Aldermen  or  the  Common 
CounciL  But  whether  these  bodies  have  been  composed  of 
one  house  or  two,  the  moment  a  city  has  become  large  they 
have  ceased  to  give  satisfactory  results.  Originally  these  bodies 
were  given  very  large  powers,  in  order  to  carry  out  to  the 
utmost  the  idea  of  local  self-government.  As  a  rule  they  have 
so  far  abused  these  powers  that  almost  everywhere  the  scope 
of  their  authority  has  been  greatly  restricted.  In  the  city  of 
New  York  that  tendency  has  been  acted  upon  to  so  great  an 
extent  as  to  deprive  the  common  council  of  every  important 
function  it  ever  possessed,  except  the  single  power  to  grant 


664  THE   STATE   GOVEKNMENTS 


public  franchises.  How  greatly  tliey  have  abused  this  remain- 
ing power  is  unfortunately  matter  of  public  record.  The  pow- 
ers thus  taken  away  from  the  common  council,  are  ordinarily 
lodged  with  boards  made  up  of  the  higher  city  officials.  Even 
in  the  city  of  New  York  it  has  seldom  been  the  case  that  the 
mayor  of  the  city  has  not  been  a  man  of  good  repute  and  of 
some  parts.  As  a  general  proposition,  it  is  found  in  American 
cities  that  the  larger  the  constituency  to  which  a  candidate 
must  appeal,  and  the  more  important  the  office,  the  more  of  a 
man  the  candidate  must  be.  What  may  be  the  outcome  of  this 
difficulty  as  to  the  legislative  body  in  cities,  it  is  impossible  to 
say.  Sometimes  it  seems  almost  as  though  the  attempt  would 
be  made  to  govern  cities  without  any  local  legislature.  But, 
on  the  other  hand,  there  are  so  many  matters  in  regard  to 
which  such  a  body  ought  to  have  power,  that  thus  far  no  one 
has  ventured  seriously  to  take  so  extreme  a  view.  It  may 
fairly  be  said  to  be,  therefore,  the  great  unsolved  organic 
problem  in  connection  with  municipal  government  in  the 
United  States.  That  it  is  so,  illustrates  with  vividness  the 
justice  of  the  American  view  that  it  is  a  dangerous  thing,  in 
wholly  democratic  communities,  to  make  the  legislative  body 
supreme  over  the  executive. 

Thus  far  in  this  chapter,  the  shortcomings  of  the  American 
city  have  been  admitted,  and  the  effort  has  been  made  to  show 
the  peculiar  difficulties  with  which  such  a  city  has  to  deal.  It 
ought  to  be  said  that,  despite  all  of  these  difficulties,  the  average 
American  city  is  not  going  from  bad  to  worse.  There  is  sub- 
stantial reason  for  thinking  that  the  general  tendency,  even  in 
the  larger  cities,  is  towards  improvement.  Life  and  property 
are  more  secure  in  almost  all  of  them  than  they  used  to  be. 
Certainly  there  has  been  no  decrease  of  security  such  as  might 
reasonably  have  been  expected  to  result  from  increased  size. 
Less  than  a  score  of  years  ago  it  was  impossible  to  have  a  fair 
election  in  New  York  or  Brooklyn.  To-day,  and  for  the  last 
decade,  under  the  present  system  of  registry  laws,  every  elec- 
tion is  held  with  substantial  fairness.  The  health  of  our  cities 
does  not  deteriorate,  but  on  the  average  improves.  So  that  in 
the  large  and  fundamental  aspect  of  the  question  the  progress, 
if  slow,  is  steady  in  the  direction  of  better  things.  It  is  not 
strange  that  a  people  conducting  an  experiment  in  city  govern- 


CHAP.  Lii  MUNICIPAL   GOVERNMENT  665 

ment  for  which  there  is  absolutely  no  precedent,  under  condi- 
tions of  exceptional  difficulty,  should  have  to  stumble  towards 
correct  and  successful  methods  through  experiences  that  are 
both  costly  and  distressing.  There  is  no  other  road  towards 
improvement  in  the  coming  time.  But  it  is  probable  that  in 
another  decade  Americans  will  look  back  on  some  of  the  scan- 
dals of  the  present  epoch  in  city  government,  with  as  much 
surprise  as  they  now  regard  the  effort  to  control  fires  by  the 
volunteer  fire  department,  which  was  insisted  iipon,  even  in 
the  city  of  New  York,  until  within  twenty-five  years.  As 
American  cities  grow  in  stability,  and  provide  themselves  with 
the  necessary  working  plant,  they  approximate  more  and  more 
in  physical  conditions  to  those  which  prevail  in  most  European 
cities.  As  they  do  so,  it  is  reasonable  to  expect  that  their 
pavements  will  improve  and  the  condition  of  their  streets  be 
more  satisfactory.  American  cities,  as  a  rule,  have  a  more 
abundant  supply  of  water  than  European  cities,  and  they  are 
more  enterprising  in  furnishing  themselves  with  what  in  Europe 
might  be  called  the  luxuries  of  city  life,  but  which,  in  America, 
are  so  common  as  almost  to  be  regarded  as  necessities.  Espe- 
cially is  this  true  of  every  convenience  involving  the  use  of  elec- 
tricity. There  are  more  telephone  wires,  for  example,  in  New 
York  and  Brooklyn,  than  in  the  whole  of  the  United  Kingdom. 
The  problem  of  placing  these  wires  underground  therefore,  to 
take  in  passing  an  illustration,  of  another  kind,  of  the  diffi- 
culties of  city  government  in  America,  is  vastly  greater  than 
in  any  city  abroad,  because  the  multiplication  of  the  wires  is 
so  constant  and  at  so  rapid  a  rate  that  as  fast  as  some  are 
placed  beneath  the  surface,  those  which  have  been  strung 
while  this  process  has  been  going  on  seem  as  numerous  as 
before  the  underground  movement  began. 

It  may  justly  be  said,  therefore,  that  the  American  city,  if 
open  to  serious  blame,  is  also  deserving  of  much  praise.  Every 
one  understands  that  universal  suffrage  has  its  drawbacks,  and 
in  cities  these  defects  become  especially  evident.  It  would  be 
uncandid  to  deny  that  many  of  the  problems  of  American  cities 
spring  from  this  factor,  especially  because  the  voting  popula- 
tion is  continually  swollen  by  foreign  immigrants  whom  time 
alone  can  educate  into  an  intelligent  harmony  with  the  Ameri- 
can system.     But  because  there  is  scum  upon  the  surface  of  a 


666  THE   STATE   GOVERNMENTS  part  ii 

boiling  liquid,  it  does  not  follow  that  the  material,  nor  the 
process  to  which  it  is  subjected,  is  itself  bad.  Universal  suf- 
frage, as  it  exists  in  the  United  States,  is  not  only  a  great 
element  of  safety  in  the  present  day  and  generation,  but  it  is 
perhaps  the  mightiest  educational  force  to  which  the  masses 
of  men  ever  have  been  exposed.  In  a  country  where  wealth 
has  no  hereditary  sense  of  obligation  to  its  neighbours,  it  is 
hard  to  conceive  what  would  be  the  condition  of  society  if 
universal  suffrage  did  not  compel  every  one  having  property  to 
consider,  to  some  extent  at  least,  the  well-being  of  the  whole 
community. 

It  is  probable  that  no  other  system  of  government  would 
have  been  able  to  cope  any  more  successfully,  on  the  whole, 
with  the  actual  conditions  that  American  cities  have  been  com- 
pelled to  face.  It  may  be  claimed  for  American  institutions 
even  in  cities,  that  they  lend  themselves  with  wonderfully 
little  friction  to  growth  and  development  and  to  the  peaceful 
assimilation  of  new  and  strange  populations.  Whatever  de- 
fects have  marked  the  progress  of  such  cities,  no  one  acquainted 
with  their  history  will  deny  that  since  their  problem  assumed 
its  present  aspect,  progress  has  been  made,  and  substantial 
progress,  from  decade  to  decade.  The  problem  will  never  be 
anything  but  a  most  difficult  one,  but  with  all  its  difficulties 
there  is  every  reason  to  be  hopeful. 


APPENDIX 

NOTE   TO   CHAPTER  III 

ON    CONSTITUTIONAL    CONVENTIONS 

In  America  it  is  always  by  a  convention  {i.e.  a  representative  body 
called  together  for  some  occasional  or  temporary  purpose)  that  a  constitu- 
tion is  framed.  It  was  thus  that  the  first  constitutions  for  the  thirteen 
revolting  colonies  were  drawn  up  and  enacted  in  1776  and  the  years  fol- 
lowing ;  and  as  early  as  1780  the  same  plan  had  suggested  itself  as  the 
right  one  for  framing  a  constitution  for  the  whole  United  States. ^ 
Recognized  in  the  Federal  Constitution  (Art.  v.)  and  in  the  successive 
Constitutions  of  the  several  States  as  the  proper  method  to  be  employed 
when  a  new  constitution  is  to  be  prepared,  or  an  existing  constitution 
revised  throughout,  it  has  now  become  a  regular  and  familiar  part  of  the 
machinery  of  American  government,  almost  a  necessaiy  part,  because  all 
American  legislatures  are  limited  by  a  fundamental  law,  and  therefore 
when  a  fundamental  law  is  to  be  repealed  or  largely  recast,  it  is  desirable 
to  provide  for  the  pur^jose  a  body  distinct  from  the  ordinary  legislature. 
AVhere  it  is  sought  only  to  change  the  existing  fundamental  law  in  a  few 
specified  points,  the  function  of  proposing  these  changes  to  the  people  for 
their  acceptance  may  safely  be  left,  and  generally  is  left,  to  the  legislature. 
Originally  a  convention  was  conceived  of  as  a  sovereign  body,  wherein 
the  full  powers  of  the  people  were  vested  by  popular  election.  It  is  now, 
however,  usually  an  advisory  body,  which  prepares  a  draft  of  a  new  con- 
stitution and  submits  it  to  the  people  for  their  acceptance  or  rejection.^ 
And  it  is  not  deemed  to  be  sovereign  in  the  sense  of  possessing  the  plen- 
ary authority  of  the  people,  for  its  powers  may  be,  and  now  almost  invari- 
ably are,  limited  by  the  statute  under  which  the  people  elect  it.^ 

1  It  is  found  in  a  private  letter  of  Alexander  Hamilton  (then  only  twenty- 
three  years  of  age)  of  that  year. 

2  The  only  recent  exception  to  the  now  unvarying  rule  that  conventions 
merely  draft  constitutions  was  furnished  in  1890  by  the  State  of  Mississippi, 
where  a  convention,  convoked  under  a  statute,  not  oidy  jirepared,  but  actu- 
ally enacted,  the  present  Constitution  of  the  State.  The  circumstances  were 
peculiar,  and  the  same  thing  would  not  happen  in  any  Northern  State.  As  to 
Kentucky,  see  p.  43.3. 

3  The  State  Conventions  which  carried,  or  rather  affected  to  carry,  the  seced- 
ing Slave  States  out  of  the  Union,  acted  as  sovereign  bodies.  Their  proceedings, 
however,  though  clothed  with  legal  forms,  were  practically  revolutionary. 

667 


668  APPENDIX 


Questions  relating  to  the  powers  of  a  Constitutional  Convention  have 
several  times  come  before  the  courts,  so  that  there  exists  a  small  body  of 
law  as  well  as  a  large  body  of  custom  and  practice  regarding  the  rights 
and  powers  of  such  assemblies.  Into  this  law  and  practice  I  do  not  pro- 
pose to  enter.  But  it  is  worth  while  to  indicate  certain  advantages  which 
have  been  found  to  attach  to  the  method  of  entrusting  the  i^reparation  of 
a  fundamental  instrument  of  government  to  a  body  of  men  specially 
chosen  for  the  purpose  instead  of  to  the  ordinary  legislature.  The  topic 
suggests  interesting  comparisons  with  the  experience  of  France  and  other 
European  countries  in  which  constitutions  have  been  drafted  and  enacted 
by  the  legislative,  which  has  been  sometimes  also  practically  the  execu- 
tive, authority.  Nor  is  it  wholly  without  bearing  on  problems  which 
have  recently  arisen  in  England,  where  Parliament  has  found  itself,  and 
may  find  itself  again,  invited  to  enact  what  would  be  in  substance  a  new 
constitution  for  a  part  of  the  United  Kingdom. 

An  American  Constitutional  Convention,  being  chosen  for  the  sole 
purpose  of  drafting  a  constitution,  and  having  nothing  to  do  with  the 
ordinary  administration  of  government,  no  influence  or  patronage,  no 
power  to  raise  or  appropriate  revenue,  no  opportunity  of  doing  jobs  for 
individuals  or  corporations,  is  not  necessarily  elected  on  party  lines  or 
in  obedience  to  party  considerations,  i  Hence  men  comparatively  indif- 
ferent to  party  are  sometimes  elected  ;  while  those  who  seek  to  enter  a 
legislature  for  the  sake  of  party  advancement  or  the  promotion  of  some 
private  gainful  object  do  not  generally  care  to  serve  in  a  convention. 

When  the  convention  meets,  it  is  not,  like  a  legislature,  a  body  strictly 
organized  by  party.  A  sense  of  individual  independence  and  freedom 
may  prevail  unknown  in  legislatures.  Proposals  have  therefore  a  chance 
of  being  considered  on  their  merits.  A  scheme  does  not  necessarily  com- 
mand the  support  of  one  set  of  men  nor  encounter  the  hostility  of  another 
set  because  it  proceeds  from  a  particular  leader  or  group.  And  as  the 
ordinary  party  questions  do  not  come  up  for  decision  while  its  delibera- 
tions are  going  on,  men  are  not  thrown  back  on  their  usual  party  affili- 
ations, nor  are  their  passions  roused  by  exciting  political  issues. 

Having  no  work  but  constitution-making  to  consider,  a  convention  is 
free  to  bend  its  whole  mind  to  that  work.  Debate  has  less  tendency  to 
stray  off  to  irrelevant  matters.  Business  advances  because  there  are  no 
such  interruptions  as  a  legislature  charged  with  the  ordinary  business  of 
government  must  expect. 

Since  a  convention  assembles  for  one  purpose  only,  and  that  a  purpose 
specially  interesting  to  thoughtful  and  public-spirited  citizens,  and  since 
its  duration  is  short,  men  who  would  not  care  to  enter  a  legislature,  men 
pressed  by  professional  labours,  or  averse  to  the  "rough  and  tumble  "  of 
politics,  a  class  large  in  America  and  increasing  in  Europe,  are  glad  to 
serve  on  it,  while  mere  jobbers  or  office-seekers  find  little  to  attract  them 

1  The  questions  of  practical  importance  to  the  States  which  a  State  Con- 
vention deals  with  are  very  often  not  in  issue  between  the  two  State  parties, 
seeing  that  the  latter  are  formed  on  national  lines. 


ON   CONSTITUTIONAL   CONVENTIONS  669 

in  its  functions.!  Tiius  tlie  level  of  honesty,  even  more  than  of  ability, 
is  higher  in  conventions  than  in  legislatures. 

The  fact  that  the  constitution  when  drafted  has  to  be  submitted  to  the 
people,  by  whose  authority  it  will  (if  accepted)  be  enacted,  gives  to  the 
convention  a  somewhat  larger  freedom  for  proposing  what  they  think 
best  than  a  legislature,  courting  or  fearing  its  constituents,  commonly 
allows  itself.  As  the  convention  vanishes  altogether  when  its  work  is 
accomplished,  the  ordinary  motives  for  popularity -hunting  are  less  potent. 
As  it  does  not  legislate  but  merely  proposes,  it  need  not  fear  to  ask  the 
people  to  enact  what  may  offend  certain  persons  or  classes,  for  the  odium, 
if  any,  of  harassing  these  classes  will  rest  with  the  people.  And  as  the 
people  must  accept  or  reject  the  draft  en  bloc  (unless  in  the  rare  case 
where  provision  is  made  for  voting  on  particular  points  separately),  more 
care  is  taken  in  preparing  the  draft,  in  clearing  it  of  errors  and  repug- 
nances, than  a  legislature  capable  of  repealing  or  altering  in  its  next 
session  what  it  now  provides,  bestows  on  the  details  of  its  measures. 

Those  who  are  familiar  with  European  parliaments  may  conceive  that 
as  a  set-off  to  these  advantages  there  will  be  a  difficulty  in  getting  a  num- 
ber of  men  not  organized  by  parties  to  work  promptly  and  efficiently, 
that  a  convention  will  be,  so  to  speak,  an  amorphous  body,  that  if  it  has 
no  leaders  nor  party  allegiance  it  will  divide  one  way  to-day  and  another 
way  to-morrow,  that  the  abundance  of  able  men  will  mean  an  abundance 
of  doctrinaire  proposals  and  a  reluctance  to  subordinate  individual  pre- 
possessions to  practical  success.  Admitting  that  such  difficulties  do 
sometimes  arise,  it  may  be  observed  that  in  America  men  quickly  organ- 
ize themselves  for  any  and  every  purpose,  and  that  doctrinairism  is  there 
so  uncommon  a  fault  as  to  be  almost  a  merit.  When  a  complete  new 
constitution  is  to  be  prepared,  the  balance  of  convenience  is  decidedly  in 
favour  of  giving  the  work  to  a  convention,  for  although  conventions  are 
sometimes  unwise,  they  are  usually  composed  of  far  abler  men  than  those 
who  fill  the  legislatures,  and  discharge  their  function  with  more  wisdom 
as  well  as  with  more  virtue.  But  where  it  is  not  desired  to  revise  the 
whole  frame  of  government,  the  simpler  and  better  plan  is  to  proceed  by 
submitting  to  the  people  specific  amendments,  limited  to  particular  pro- 
visions of  the  existing  constitution  ;  and  this  is  the  method  now  mo.st 
generally  employed  in  improving  State  constitutions. 

The  above  remarks  are  of  course  chiefly  based  on  the  history  of  State 
conventions,  because  no  national  constitutional  convention  has  sat  since 
1787.     But  they  apply  in  principle  to  any  constitution-making  body. 

1  Many  of  the  men  conspicuous  in  the  public  life  of  Massachusetts  during  the 
succeeding  thirty  years  first  made  their  mark  in  the  Constitutional  Convention 
of  1853.  The  draft  framed  by  that  Convention  was,  however,  rejected  by  the 
people.  The  new  Constitution  for  New  York,  framed  by  the  Convention  of 
1867,  was  also  lost  at  the  polls.  That  Convention  was  remarkable  as  being 
(according  to  Judge  Jameson)  the  only  one  in  wliicli  the  requirement  that  a 
delegate  must  be  resident  in  the  district  electing  him  was  dispensed  with 
{Constit.  Conventions,  §  2()7). 


670  APPENDIX 


NOTE   TO   CHAPTER   IV 

WHAT    THE    FEDERAL    CONSTITUTION    OWES    TO    THE    CONSTITUTIONS    OF    THE 
SEVERAL    STATES 

The  following  statement  of  the  provisions  of  the  Federal  Constitution 
which  have  been  taken  from  or  modelled  upon  State  constitutions,  is 
extracted  from  a  valuable  article  by  the  late  Mr.  Alexander  Johnston  in 
the  New  Princeton  Review  for  September  1887  :  — 

"That  part  of  the  Constitution,  which  has  attracted  most  notice 
abroad,  is  probably  its  division  of  Congress  into  a  Senate  and  a  House  of 
Representatives,  with  the  resulting  scheme  of  the  Senate  as  based  on  the 
equal  representation  of  the  States.  It  is  probably  inevitable  that  the 
upper  or  hereditary  House  in  foreign  legislative  bodies  shall  disappear  in 
time.  And  it  is  not  easy  to  hit  on  any  available  substitute  ;  and  English 
writers  for  examples,  judging  from  the  diificulty  of  finding  a  substitute 
for  the  House  of  Lords,  have  rated  too  high  the  political  skill  of  the  Con- 
vention in  hitting  upon  so  brilliant  a  success  as  the  Senate.  But  the 
success  of  the  Convention  was  due  to  the  antecedent  experience  of  the 
States.  Excepting  Pennsylvania  and  Vermont,  which  then  gave  all 
legislative  powers  to  one  House,  and  executive  powers  to  a  governor  and 
council,  all  the  States  had  bicameral  systems  in  1787.^ 

"The  name  'Senate'  was  used  for  the  Ujiper  House  in  Maryland, 
Massachusetts,  New  York,  North  Carolina,  New  Hampshire,  and  South 
Carolina  and  Virginia;  and  the  name  '  House  of  Representatives,'  for 
the  Lower  House,  was  in  use  in  Massachusetts,  New  Hami^shire,  and 
South  Carolina,  as  well  as  in  Pennsylvania  and  Vermont. 

' '  The  rotation,  by  which  one-third  of  the  Senate  goes  out  every  two 
years,  was  taken  from  Delaware,  where  one-third  went  out  each  year, 
New  York  (one-fourth  each  year),  Pennsylvania  (one-third  of  tlie  council 
each  year),  and  Virginia  (one-fourth  each  year).  The  provisions  of  the 
whole  fifth  section  of  Art.  i.,  the  administration  of  the  two  Houses,  their 
power  to  decide  the  election  of  their  members,  make  rules  and  punish 
their  violation,  keep  a  journal,  and  adjourn  from  day  to  day,  are  in  so 
many  State  constitutions  that  no  specification  is  needed  for  them. 

"  The  provision  that  money-bills  shall  originate  in  the  House  of  Repre- 
sentatives is  taken  almost  word  for  word  from  the  Constitutions  of  Massa- 
chusetts and  New  Hampshire,  as  is  the  provision,  which  has  never  been 
needed,  that  the  President  may  adjourn  the  two  Houses  when  they  cannot 
agree  on  a  time  of  adjournment.     The  provision  for  a  message  is  from  the 

1  Georgia,  however,  had  not  till  1789  a.  true  second  chamber,  her  constitu- 
tion of  1777  having  merely  created  an  executive  council  elected  by  the  Assem- 
bly from  among  its  own  members. 

Vermont  was  not  one  of  the  thirteen  original  States,  but  was  a  semi-inde- 
pendent commonwealth,  not  a  member  of  the  Confederation  of  1781,  not 
represented  in  the  Convention  of  1787,  and  not  admitted  to  the  Union  till 
1791. 


THE   FEDERAL   CONSTITUTION  071 

Constitution  of  New  York.  All  the  details  of  the  process  of  impeachment 
as  adopted  by  the  Convention  may  be  found  in  the  Constitutions  of  Dela- 
ware, Massachusetts,  New  Hampshire,  New  York,  Pennsylvania,  South 
Carolina,  Vermont,  Virginia,  even  to  the  provision  in  the  South  Carolina 
system  that  conviction  should  follow  the  vote  of  two-thirds  of  the  mem- 
bers present.  (It  should  be  said,  however,  that  the  limitation  of  sentence 
in  case  of  conviction  to  removal  from  office  and  disqualification  for 
further  office-holding  is  a  new  feature.)  Even  the  much-praised  pro- 
ce.gs  of  the  veto  is  taken  en  bloc  from  the  Massachusetts  Constitution  of 
1780,  and  the  slight  changes  are  so  evidently  introduced  as  improvements 
on  the  language  alone  as  to  show  that  the  substance  was  copied. 

"The  adoption  of  different  bases  for  the  two  Houses  —  the  House  of 
Representatives  representing  the  States  according  to  population,  while  the 
Senate  represented  them  equally  —  was  one  of  the  most  important  pieces 
of  work  which  the  Convention  accomplished  as  well  as  the  one  which  it 
reached  most  unwillingly.  All  the  States  had  been  experimenting  to  find 
different  bases  for  their  two  Houses.  Virginia  had  come  nearest  to  the 
appearance  or  the  final  result  in  having  her  Senate  chosen  by  districts  and 
her  representatives  by  counties;  and,  as  the  Union  already  had  its 
'districts'  formed  (in  the  States),  one  might  think  that  the  Convention 
merely  followed  Virginia's  experience.  But  the  real  process  was  far 
different  and  more  circuitous.  There  were  eleven  States  represented  in 
the  Convention,  New  Hampshire  taking  New  York's  place  when  the  later 
withdrew,  and  Rhode  Island  sending  no  delegates.  Roughly  speaking, 
five  States  wanted  the  '  Virginia  plan '  above  stated  ;  five  wanted  one 
House  as  in  the  Confederation  with  State  equality  in  it ;  and  one  (Con- 
necticut) had  a  plan  of  its  own  to  which  the  other  ten  States  finally 
acceded.  The  Connecticut  system  since  1699,  when  its  legislature  was 
divided  into  two  Houses,  had  maintained  the  equality  of  the  towns  in  the 
Lower  House,  while  choosing  the  members  of  the  Upper  House  from  the 
whole  people.  In  like  manner  its  delegates  now  proposed  that  the  States 
should  be  equally  represented  in  the  Senate,  while  the  House  of  Repre- 
sentatives, chosen  from  the  States  in  proportion  to  population,  should 
represent  the  people  numerically.  The  proposition  was  renewed  again 
and  again  for  nearly  a  month  until  the  two  main  divisions  of  the  Conven- 
tion, unable  to  agree,  accepted  the  '  Connecticut  compromise,'  as  Bancroft 
calls  it,  and  the  peculiar  constitution  of  the  Senate  was  adopted. 

"  The  President's  ofiice  was  simply  a  development  of  that  of  the  gov- 
ernors of  the  States.  The  name  itself  had  been  familiar ;  Delaware,  New 
Hampshire,  Pennsylvania,  and  South  Carolina,  had  used  the  title  of 
President  instead  of  that  of  Governor.  In  all  the  States  the  governor  ' 
was  commander-in-chief,  except  that  in  Rhode  Island  he  was  to  have  the 
advice  of  six  assistants,  and  the  major  part  of  the  freemen,  before  enter- 
ing upon  his  duties.  The  President's  pardoning  power  was  drawn  from 
the  example  of  the  States  ;  they  had  granted  it  to  the  governors  (in  some 
cases  with  the  advice  of  a  council)  in  all  the  States  except  Connecticut, 
Rhode  Island,  and  Georgia,  where  it  was  retained  to  the  legislature,  and 
in  South  Carolina,  where  it  seems  to  have  been  forgotten  in  the  Constitu- 


672  APPENDIX 


tion  of  1778,  but  was  given  to  the  governor  in  1790.  The  governor  was 
elected  directly  by  the  people  in  Connecticut,  Massachusetts,  New  York, 
and  Rhode  Island,  and  indirectly  by  the  two  Houses  in  the  other  eight 
States  ;  and  in  this  nearly  equal  division  we  may,  perhaps,  find  a  reason 
for  the  Convention's  hesitation  to  adopt  either  system,  and  for  its  futile 
attempt  to  introduce  an  electoral  system,  as  a  compromise.  The  power 
given  to  the  Senate  of  ratifying  or  rejecting  the  President's  appointments 
seems  to  have  been  an  echo  of  New  York's  council  of  appointment ;  the 
most  strenuous  and  persistent  efforts  were  made  to  provide  a  council  to 
share  in  appointments  with  the  President ;  the  admission  of  the  Senate 
as  a  substitute  was  the  furthest  concession  which  the  majority  would 
make  ;  and  hardly  any  failure  of  details  caused  more  heart-burnings  than 
the  rejection  of  this  proposed  council  for  appointments. 

"The  President's  power  of  filling  vacancies,  by  commissions  to  expire 
at  the  end  of  the  next  session  of  the  Senate,  is  taken  in  terms  from  the 
Constitution  of  North  Carolina. 

' '  Almost  every  State  prescribed  a  form  of  oath  for  its  officers  ;  the 
simple  and  impressive  oath  of  the  President  seems  to  have  been  taken 
from  that  of  Pennsylvania,  with  a  suggestion,  much  improved  in 
language,  from  the  oath  of  allegiance  of  the  same  State.  The  office  of  vice- 
president  was  evidently  suggested  by  that  of  the  deputy,  or  lieutenant- 
governor  (in  four  States  the  vice-president)  of  the  States.  The  exact 
prototype  of  the  office  of  vice-president  is  to  be  found  in  that  of  the 
lieutenant-governor  of  New  York,  He  was  to  preside  in  the  Senate,  with- 
out a  vote,  except  in  case  of  a  tie,  was  to  succeed  the  governor,  when  suc- 
cession was  necessary,  and  was  to  be  succeeded  by  the  President  pro 
tempore  of  the  Senate. 

"The  provisions  for  the  recognition  of  inter-State  citizenship,  and  for 
the  rendition  of  fugitive  slaves  and  criminals,  were  a  necessity  in  any  such 
form  of  government  as  was  contemplated,  but  were  not  at  all  new.  They 
had  formed  a  part  of  the  eighth  article  of  the  New  England  Confederation 
of  1643.  Finally  the  first  ten  amendments,  which  were  tacitly  taken  as  a 
part  of  the  original  instrument,  are  merely  a  selection  from  the  substance 
or  the  spirit  of  the  Bills  of  Rights  which  preceded  so  many  of  the  State 
constitutions. 

' '  The  most  solid  and  excellent  work  done  by  the  Convention  was  its 
statement  of  the  powers  of  Congress  (in  §  8  of  Art.  i.)  and  its  definition 
of  the  sphere  of  the  Federal  judiciary  (in  Art.  iii.).  The  results  in  both  of 
these  cases  were  due,  like  the  powers  denied  to  the  States  and  to  the 
United  States  (in  §§  9  and  10  of  Art.  i.),  to  the  previous  experience  of 
government  by  the  States  alone.  For  eleven  years  or  more  (to  say  noth- 
ing of  the  antecedent  colonial  experience)  the  people  had  been  engaged 
in  their  State  governments  in  an  exhaustive  analysis  of  the  powers  of 
government.  The  failures  in  regard  to  some,  the  successes  in  regard  to 
others,  were  all  before  the  Convention  for  its  consideration  and  guidance. 

' '  Not  creative  genius,  but  wise  and  discreet  selection  Avas  the  proper  work 
of  the  Convention  ;  and  its  success  was  due  to  the  clear  perception  of  the 
antecedent  failures  and  successes,  and  to  the  self-restraint  of  its  members. 


RULES   OF   THE    SENATE  673 

"The  (presidential)  electoral  system  was  almost  the  only  feature  of 
the  Constitution  not  suggested  by  State  experience,!  almost  the  only 
feature  which  was  purely  artificial,  not  a  natural  growth  ;  it  was  the  one 
which  met  with  least  criticism  from  contemporary  opponents  of  the 
Constitution  and  most  unreserved  praise  from  the  Federalist;  and  de- 
mocracy has  ridden  right  over  it." 


NOTE  TO  CHAPTER  X 

EXTRACTS  FROM  THE  RULES  OF  THE  SENATE 

A  QUORUM  shall  consist  of  a  majority  of  the  senators,  duly  chosen  and 
sworn. 

The  legislative,  the  executive,  the  confidential  legislative  proceedings, 
and  the  proceedings  when  sitting  as  a  Court  of  Impeachment,  shall  each 
be  recorded  in  a  separate  book. 

"When  the  yeas  and  nays  are  ordered,  the  names  of  senators  shall  be 
called  alphabetically  ;  and  each  senator  shall,  without  debate,  declare  his 
assent  or  dissent  to  the  question,  unless  excused  by  the  Senate  ;  and  no 
senator  shall  be  permitted  to  vote  after  the  decision  shall  have  been 
announced  by  the  presiding  officer,  but  may  for  sufficient  reasons,  with 
unanimous  consent,. change  or  withdraw  his  vote. 

When  a  senator  declines  to  vote  on  call  of  his  name,  he  shall  be 
required  to  assign  his  reasons  therefor,  and  on  his  having  assigned  them, 
the  presiding  officer  shall  submit  the  question  to  the  Senate,  "  Shall  the 
senator  for  the  reasons  assigned  by  him,  be  excused  from  voting  ?  "  which 
shall  be  decided  without  debate. 

In  the  appointment  of  the  standing  committees,  the  Senate,  unless 
otherwise  ordered,  shall  proceed  by  ballot  to  appoint  severally  the  chair- 
man of  each  committee,  and  then,  by  one  ballot,  the  other  members 
necessary  to  complete  the  same.  A  majority  of  the  whole  number  of 
votes  given  shall  be  necessary  to  the  choice  of  a  chairman  of  a  standing 
committee,  but  a  plurality  of  votes  shall  elect  the  other  members  thereof. 
All  other  committees  slaall  be  appointed  by  ballot,  unless  otherwise 
ordered,  and  a  plurality  of  votes  shall  appoint. 

At  the  second  or  any  subsequent  session  of  a  Congress,  the  legislative 
business  which  remained  undetermined  at  the  close  of  the  next  preceding 
session  of  that  Congress  shall  be  resumed  and  proceeded  with  in  the  same 
manner  as  if  no  adjournment  of  the  Senate  had  taken  place. 

1  But  it  is  well  observed  by  Mr.  J.  H.  Robinson  (Original  and  Derived 
Features  of  the  United  States  Constitution,  p.  29)  that  tliis  system  may  have 
been  suggested  by  the  ConstitntioTi  of  Maryland  (177(i)-  which  provided  for  a 
choice  of  the  State  Senators  l>y  a  body  of  electors  chosen  every  five  years  by 
the  people  for  this  purpose.  Mr.  Robinson  rightly  disapproves  Sir  H.  Maine's 
comparison  of  the  electoral  system  of  the  Romano-Germanic  Empire. 
VOL.  I  2  X 


674  APPENDIX 


On  a  motion  made  and  seconded  to  close  the  doors  of  the  Senate,  on 
the  discussion  of  any  business  whicli  may,  in  the  opinion  of  a  senator, 
require  secrecy,  the  presiding  officer  shall  direct  the  galleries  to  be  cleared  ; 
and  during  the  discussion  of  such  motion  the  doors  shall  remain  closed. 

When  the  President  of  the  United  States  shall  meet  the  Senate  in  the 
Senate  chamber  for  the  consideration  of  executive  business,  he  shall  have 
a  seat  on  the  right  of  the  presiding  officer.  When  the  Senate  shall  be 
convened  by  the  President  of  the  United  States  to  any  other  place,  the 
presiding  officer  of  the  Senate  and  the  senators  shall  attend  at  the  place 
appointed,  with  the  necessary  officers  of  the  Senate. 

When  acting  upon  confidential  or  executive  business,  unless  the  same 
shall  be  considered  in  open  executive  session,  the  Senate  chamber  shall 
be  cleared  of  all  persons  except  the  secretary,  the  chief  clerk,  the  prin- 
cipal legislative  clerk,  the  executive  clerk,  the  minute  and  journal  clerk, 
the  sergeant-at-arms,  the  assistant  doorkeeper,  and  such  other  officers  as 
the  presiding  officer  shall  think  necessary,  and  all  such  officers  shall  be 
sworn  to  secrecy. 

All  confidential  communications  made  by  the  President  of  the  United 
States  to  the  Senate  shall  be  by  the  senators  and  the  officers  of  the  Senate 
kept  secret ;  and  all  treaties  which  may  be  laid  before  the  Senate,  and  all 
remarks,  votes,  and  proceedings  thereon,  shall  also  be  kept  secret  until 
the  Senate  shall,  by  their  resolution,  take  off  the  injunction  of  secrecy, 
or  unless  the  same  shall  be  considered  in  open  executive  session. 

Any  senator  or  officer  of  the  Senate  who  shall  disclose  the  seci'et  or 
confidential  business  or  jn'oceedings  of  the  Senate  shall  be  liable,  if  a 
senator,  to  suffer  expulsion  from  the  body ;  and  if  an  officer,  to  dismissal 
from  the  service  of  the  Senate,  and  to  punishment  for  contempt. 

On  the  final  question  to  advise  and  consent  to  the  ratification  of  a 
treaty  in  the  form  agreed  to,  the  concurrence  of  two-thirds  of  the  senators 
present  shall  be  necessary  to  determine  it  in  the  affirmative  ;  but  all  other 
motions  and  questions  upon  a  treaty  shall  be  decided  by  a  majority  vote, 
except  a  motion  to  postpone  indefinitely,  which  shall  be  decided  by  a  vote 
of  two-thirds. 

When  nominations  shall  be  made  by  the  President  of  the  United  States 
to  the  Senate,  they  shall,  unless  otherwise  ordered,  be  referred  to  ap- 
propriate committees ;  and  the  final  question  on  every  nomination  shall 
be,  "Will  the  Senate  advise  and  consent  to  this  nomination  ?  "  Which 
question  shall  not  be  put  on  the  same  day  on  which  the  nomination  is 
received,  nor  on  the  day  on  which  it  may  be  reported  by  a  committee, 
unless  by  unanimous  consent. 

All  information  communicated  or  remarks  made  by  a  senator,  when 
acting  upon  nominations,  concerning  the  character  or  qualifications  of 
the  person  nominated,  also  all  votes  upon  any  nomination,  shall  be  kept 
secret.  If,  however,  charges  shall  be  made  against  a  person  nominated, 
the  committee  may,  in  its  discretion,  notify  such  nominee  thereof,  but 
the  name  of  the  person  making  such  charges  shall  not  be  disclosed.  The 
fact  that  a  nomination  has  been  made,  or  that  it  has  been  confirmed  or 
rejected,  shall  not  be  regarded  as  a  secret. 


PRIVATE   BILLS  (575 


NOTE   (A)   TO   CHAPTER   XVI 

PRIVATE    KILLS 

In  England  a  broad  distinction  is  drawn  between  public  bills  and  local 
or  private  bills.  The  former  class  includes  measures  of  general  applica- 
tion, altering  or  adding  to  the  general  law  of  the  land.  The  latter  includes 
measures  intended  to  apply  only  to  some  particular  place  or  person,  as  for 
instance,  bills  incorporating  railway  or  gas  or  water  companies  or  extend- 
ing the  powers  of  such  bodies,  bills  authorizing  municipalities  to  execute 
public  improvements,  as  well  as  estate  bills,  bills  relating  to  charitable 
foundations,  and  (for  Ireland)  divorce  bills.i  Bills  of  the  local  and  per- 
sonal class  have  for  many  years  past  been  treated  differently  from  public 
bills.  They  are  brought  in,  as  it  is  expressed,  on  petition,  and  not  on 
motion.  Notice  is  required  to  be  given  of  such  a  bill  by  advertisement 
nearly  three  months  before  the  usual  date  of  the  meeting  of  Parliament, 
and  copies  must  be  deposited  some  weeks  before  the  opening  of  the  ses- 
sion. The  second  reading  is  usually  granted  as  a  matter  of  course  ;  and 
after  second  reading,  instead  of  being,  like  a  public  bill,  considered  in 
committee  of  the  whole  House,  it  goes  (if  opposed)  to  a  private  bill  com- 
mittee consisting  (usually)  of  four  members,  who  take  evidence  regard- 
ing it  from  the  promoters  and  opponents,  and  hear  counsel  argue  for  and 
against  its  preamble  and  its  clauses.  In  fact,  the  proceedings  on  private 
bills  are  to  some  extent  of  a  judicial  nature,  although  of  course  the  com- 
mittee must  have  regard  to  considerations  of  policy. 

Pecuniary  claims  against  tlie  Government  are  in  England  not  raised  by 
way  of  private  bill.  They  are  presented  in  the  courts  by  a  proceeding 
called  a  petition  of  right,  the  Crown  allowing  itself  to  be  sued  by  one  of 
its  subjects. 

In  America  no  such  difference  of  treatment  as  the  above  exists  between 
public  and  private  bills  ;  all  are  dealt  with  in  substantially  the  same  way 
by  the  usual  legislative  methods.  A  bill  of  a  purely  local  or  personal 
nature  gets  its  second  reading  as  a  matter  of  course,  like  a  bill  of  general 
application,  is  similarly  referred  to  the  appropriate  committee  (which  may 
hear  evidence  regarding  it,  but  does  not  hear  counsel),  is  considered  and 
if  necessary  amended  by  the  committee,  is,  if  time  permits,  reported  back 
to  the  House,  and  there  takes  its  chance  among  the  jostling  crowd  of 
other  bills,  Fridays,,  however,  being  specially  set  apart  for  the"  considera- 
tion of  private  business.  There  is  a  calendar  of  private  bills,  and  those 
which  get  a  place  early  upon  it  have  a  chance  of  passing.  A  great  many 
are  unopposed,  and  can  be  hurried  through  by  "  unanimous  consent." 
Private  bills  are  in  Congress  even  more  multifarious  in  their  contents, 

1  The  official  distinction  in  the  yearly  editions  of  the  Statutes  is  into  Public 
General  Acts,  Public  Acts  of  a  local  character  (which  include  Provisional 
Order  Acts  and  Local  Acts),  and  Private  Acts.  But  in  ordinary  speech,  those 
measures  which  are  brought  iu  at  the  instance  of  particular  persons  for  a  local 
purpose  are  called  private. 


676  APPENDIX 


as  well  as  incomparably  more  numerous,  than  in  England,  althoxigh  they 
do  not  include  the  vast  mass  of  bills  for  the  creation  or  regulation  of  vari- 
ous public  undertakings  within  a  particular  vState,  since  these  would  fall 
within  the  province  of  the  State  legislature.  They  include  three  classes 
practically  unknown  in  England,  pension  bills,  which  propose  to  grant  a 
pension  to  some  person  (usually  a  soldier  or  his  widow) ,  bills  for  satisfy- 
ing some  claim  of  an  individual  against  the  Federal  Government,  and 
bills  for  dispensing  in  particular  cases  with  a  variety  of  administrative 
statutes.  Matters  which  in  England  would  be  naturally  left  to  be  dealt 
with  at  the  discretion  of  the  executive  are  thus  assumed  by  the  legisla- 
ture, which  is  (for  reasons  that  will  appear  in  later  chapters)  more  anx- 
ious to  narrow  the  sphere  of  the  executive  than  are  the  ruling  legislatures 
of  European  countries.  I  subjoin  fi'om  the  private  bills  of  the  session  of 
1880-81  some  instances  showing  how  wide  is  the  range  of  congressional 
interference. 

In  the   House   of   Representatives 

Read  twice,  referred  to  the  Committee  on  Invalid  Pensions,  and  ordered 
to  be  printed. 

Mr.  Murch  introduced  the  following  bill :  — 

A  Bill 

For  the  relief  of  James  E.  Gott. 
Be  it  enacted 

1  By  the  Senate  and  Hoiise  of  Bepresenlatives  of  the 

2  United  States  of  America  in  Congress  Assembled. 

3  That  the  Secretary  of  the  Interior  be,  and  he  is  hereby, 

4  Authorized  and  directed  to  increase  the  pension  of  James  E. 

5  Gott,  late  a  member  of  Company  A,  Fourteenth  Regiment, 

6  Maine  Volunteers,  to  twenty-four  dollars  per  month. 


Read  twice,  referred  to  the  Committee  on  War  Claims,  and  ordered  to 
be  printed. 

A  Bill 

For  the  relief  of  the  heirs  of  George  W.  Hayes. 

Be  it  enacted, 

That  the  proper  accounting  officer  of  the  Treasury  be,  and  he  is  hereby, 
directed  to  pay  to  the  heirs  of  George  W.  Hayes,  of  North  Carolina,  the 
sum  of  four  hundred  and  fifty  dollars,  for  three  mules  furnished  the 
United  States  Army  in  eighteen  hundred  and  sixty-four,  for  which  they 
hold  proper  vouchers. 

Read  twice,  and  referred  to  the  Committee  on  Naval  Affairs. 
A  Bill 
For  the  relief  of  Thomas  G.  Corbin. 
Be  it  enacted,  etc. 

That  the  President  of  the  United  States  be,  and  is  hereby,  authorized 
to  restore  Thomas  G.  Corbin,  now  a  captain  on  the  retired  list  of  the 


THE   LOBBY  677 


Navy,  to  the  active  list,  and  to  take  rank  next  after  Commodore  J.  W. 
A.  Nicholson,  with  restitution,  from  December  twelfth,  eighteen  hundred 
and  seventy-three,  of  the  difference  of  pay  between  that  of  a  commodore 
on  the  active  list,  on  "  waiting  orders  "  pay,  and  that  of  a  captain  retired 
on  half-pay,  to  be  paid  out  of  any  money  in  the  Treasury  not  otherwise 
appropriated. 

Eead  twice,  referred  to  the  Committee  on  Ways  and  Means,  and 
ordered  to  be  printed. 

Mr.  Robinson  introduced  the  following  joint  resolution :  — 

Joint  Resolution 

Authorizing  the  remission  or  refunding  of  duty  on  a  painted-glass  window 
from  London,  England,  for  All  Souls'  Church,  in  Washington,  Dis- 
trict of  Columbia. 

Besolved  by  the  Senate  and  House  of  Eepresentatives  of  the  United 
States  of  America  in  Congress  Assembled. 

That  the  Secretary  of  the  Treasury  be,  and  he  is  hereby,  authorized 
and  directed  to  remit  or  refund,  as  the  case  may  be,  the  duties  paid  or 
accruing  upon  a  painted-glass  window  from  London,  England,  for  All 
Souls'  Church,  in  Washington,  District  of  Columbia,  imported,  or  to  be 
imported  into  Baltimore,  Maryland,  or  other  port. 


NOTE  (B)  TO  CHAPTER  XVI 

THE  LOBBY 

"The  Lobby"  is  the  name  given  in  America  to  persons,  not  being 
members  of  a  legislature,  who  undertake  to  influence  its  members,  and 
thereby  to  secure  the  passing  of  bills.  The  term  includes  both  those  who, 
since  they  hang  about  the  chamber,  and  make  a  regular  profession  of 
working  upon  members,  are  called  "lobbyists,"  and  those  persons  who 
on  any  particular  occasion  may  come  up  to  advocate,  by  argument  or 
solicitation,  any  particular  measure  in  which  they  happen  to  be  interested. 
The  name,  therefore,  does  not  necessarily  impute  any  improper  motive  or 
conduct,  though  it  is  commonly  used  in  what  Bentham  calls  a  dyslogistic 
sense. 

The  causes  which  have  produced  lobbying  are  easily  explained.  Every 
legislative  body  has  wide  powers  of  affecting  the  interests  and  fortunes  of 
private  individuals,  both  for  good  and  for  evil.  It  entertains  in  every 
session  some  public  bills,  and  of  course  many  more  private  {i.e.  local  or 
personal)  bills,  which  individuals  are  interested  in  supporting  or  resist- 
ing. Such,  for  instance,  are  public  bills  imposing  customs  duties  or  regu- 
lating the  manufacture  or  sale  of  particular  articles  (e.g.  intoxicants,  ex- 
plosives), and  private  bills  establishing  railroad  or  other  companies,  or 


678  APPENDIX 

granting  public  franchises,  or  (in  State  legislatures)  altering  the  areas  of 
local  government,  or  varying  the  taxing  or  borrowing  powers  of  munici- 
palities. When  such  bills  are  before  a  legislature,  the  promoters  and  the 
opponents  naturally  seek  to  represent  their  respective  views,  and  to  en- 
force them  upon  the  members  with  whom  the  decision  rests.  So  far  there 
is  nothing  wrong,  for  advocacy  of  this  kind  is  needed  m  order  to  bring 
the  facts  fairly  before  the  legislature. 

Now  both  in  America  and  in  England  it  has  been  found  necessary, 
owing  to  the  multitude  of  bills  and  the  difficulty  of  discussing  them  in  a 
large  body,  to  refer  private  bills  to  committees  for  investigation  ;  and  the 
legislature  has  in  both  countries  formed  the  habit  of  accepting  generally, 
though  not  invariably,  the  decisions  of  a  committee  upon  the  bills  it  has 
dealt  with.  America  has,  however,  gone  farther  than  England,  for  Con- 
gress refers  all  public  bills  as  well  as  private  bills  to  committees.  And 
whereas  in  England  private  bills  are  dealt  with  by  a  semi-judicial  proce- 
dure, the  promoters  and  opponents  appearing  by  professional  agents  and 
barristers,  in  America  no  such  procedure  has  been  created,  either  in  Con- 
gi-ess  or  in  the  State  legislatures,  and  private  bills  are  handled  much  like 
public  ones.  Moreover,  the  range  of  private  bills  is  wider  in  America 
than  in  England,  in  respect  that  they  are  used  to  obtain  the  satisfaction 
of  claims  by  private  persons  against  the  Government,  (although  there 
exists  a  Federal  Court  of  Claims,  and  in  some  States  the  State  permits 
itself  to  be  sued)  whereas  in  England  such  claims  would  either  be  brought 
before  a  law-court  in  the  form  of  a  Petition  of  Right,  or,  though  this  rarely 
happens,  be  urged  upon  the  executive  by  a  motion  made  in  Parliament. 

We  see,  therefore,  that  in  the  United  States  — 

All  business  goes  before  committees,  not  only  private  bills  but  public 
bills,  often  involving  great  pecuniary  interests. 

To  give  a  bill  a  fair  chance  of  passing,  the  committee  must  be  induced 
to  report  in  favour  of  it. 

The  committees  have  no  quasi- judicial  rules  of  procedure,  but  inquire 
into  and  amend  bills  in  their  uncontrolled  discretion,  upon  such  evidence 
or  other  statements  as  they  choose  to  admit  or  use. 

Bills  are  advocated  before  committees  by  persons  not  belonging  to  any 
recognized  and  legally  regulated  body. 

The  committees,  both  in  the  State  legislatures  and  in  the  Federal 
House  of  Representatives,  are  largely  composed  of  new  men,  unused  to 
the  exercise  of  the  powers  entrusted  to  them. 

It  results  from  the  foregoing  state  of  facts  that  the  efforts  of  the  promoters 
and  opponents  of  a  bill  will  be  concentrated  upon  the  committee  to  which 
the  bill  has  been  referred  ;  and  that  when  the  interests  affected  are  large 
it  will  be  worth  while  to  employ  every  possible  engine  of  influence.  Such 
influence  can  be  better  applied  by  those  who  have  skill  and  a  tact  matured 
by  experience  ;  for  it  is  no  easy  matter  to  know  how  to  handle  a  com- 
mittee collectively  and  its  members  individually.  Accordingly,  a  class  of 
persons  springs  up  whose  profession  it  is  to  influence  committees  for  or 
against  bills.  There  is  nothing  necessarily  illegitimate  in  doing  so.  As 
Mr.  Spofford  remarks  :  — 


THE   LOBBY  679 


"  What  is  known  as  lobbying  by  no  means  implies  in  all  cases  the  use 
of  money  to  affect  legislation.  This  corruption  is  frequently  wholly 
absent  in  cases  where  the  lobby  is  most  industrious,  numerous,  persistent, 
and  successful.  A  measure  which  it  is  desired  to  pass  into  law,  for  the 
benefit  of  certain  interests  represented,  may  be  urged  upon  members  of 
the  legislative  body  in  every  form  of  iniiuence  except  the  pecuniary  one. 
By  casual  interviews,  by  informal  conversation,  by  formal  presentation 
of  facts  and  arguments,  by  printed  appeals  in  pamphlet  form,  by  news- 
paper communications  and  leading  articles,  by  personal  introductions 
from  or  through  men  of  supposed  influence,  by  dinners,  receptions,  and 
other  entertainments,  by  the  arts  of  social  life  and  the  charms  of  femi- 
nine attraction,  the  public  man  is  beset  to  look  favourably  upon  the 
measure  which  interested  parties  seek  to  have  enacted.  It  continually 
happens  that  new  measures  or  modiiications  of  old  ones  are  agitated  in 
which  vast  pecuniary  interests  are  involved.  The  power  of  the  law, 
which  when  faithfully  administered  is  supreme,  may  make  or  unmake 
the  fortunes  of  innumerable  corporations,  business  firms,  or  individuals. 
Changes  in  the  tariff  duties,  in  the  internal  revenue  taxes,  in  the  bank- 
ing system,  in  the  mining  statutes,  in  the  land  laws,  in  the  extension  of 
patents,  in  the  increase  of  pensions,  in  the  regulation  of  mail  contracts,  in 
the  currencj'  of  the  country,  or  proposed  appropriations  for  steamship 
subsidies,  for  railway  legislation,  for  war  damages,  and  for  experiments 
in  multitudes  of  other  fields  of  legislation  equally  or  moi-e  important, 
come  before  Congress.  It  is  inevitable  that  each  class  of  interests 
liable  to  be  affected  should  seek  its  own  advantage  in  the  result.  When 
this  is  done  legitimately,  by  presentation  and  proof  of  facts,  by  testi- 
mony, by  arguments,  by  printed  or  personal  appeals  to  the  reason  and 
sense  of  justice  of  members,  there  can  be  no  objection  to  it."  ^ 

Just  as  a  plaintiff  in  a  lawsuit  may  properly  employ  an  attorney  and 
barrister,  so  a  promoter  may  properly  employ  a  lobbyist.  But  there  is 
plainly  a  risk  of  abuse.  In  legal  proceedings,  the  judge  and  jury  are 
bound  to  take  nothing  into  account  except  the  law  and  the  facts  proved 
in  evidence.  It  would  be  an  obvious  breacli  of  duty  should  a  judge 
decide  in  favour  of  a  plaintiff  because  he  had  dined  with  or  been  impor- 
tuned by  him  (as  in  the  parable),  or  received  £50  from  him.  The  judge 
is  surrounded  by  the  safeguards,  not  only  of  habit  but  of  opinion,  which 
would  condemn  his  conduct  and  cut  short  his  career  were  he  to  yield  to 
any  private  motive.  The  attorney  and  barrister  are  each  of  them  also 
members  of  a  recognized  profession,  and  would  forfeit  its  privileges  were 
they  to  be  detected  in  the  attempt  to  employ  underhand  influence.  No 
such  safeguards  surround  either  the  member  of  a  committee  or  the  lob- 
byist. The  former  usually  comes  out  of  obscurity,  and  returns  to  it ;  the 
latter  does  not  belong  to  any  disciplined  profession.  Moreover,  the  ques- 
tions which  the  committee  has  to  decide  are  not  questions  of  law,  nor 
always  questions  of  fact,  but  largely  questions  of  policy,  on  which  rea^ 
sonable  men  need  not  agree,  and  as  to  which  it  is  often  impossible  to  say 

1  Mr.  A.  R.  Spofford  (Librarian  of  Congress)  in  American  Cyclopedia  of 
Political  Science,  Article  "Lobby." 


680  APPENDIX 


that  there  is  a  palpably  right  view  or  wrong  view,  because  the  determin- 
ing considerations  will  be  estimated  differently  by  different  minds. 

These  dangers  in  the  system  of  private  bill  legislation  made  themselves 
so  manifest  in  England,  especially  during  the  great  era  of  railway  con- 
struction some  fifty  years  ago,  as  to  have  led  to  the  adoption  of  the 
quasi-judicial  procedure  described  in  the  Note  on  Private  Bills,  and  to 
the  erection  of  parliamentary  agents  into  a  regularly  constituted  profes- 
sion, bound  by  professional  rules.  Public  opinion  has  fortunately  estab- 
lished the  doctrine  that  each  member  of  a  private  bill  committee  is  to 
be  considered  as  a  quasi-judicial  person,  whose  vote  neither  a  brother 
member  nor  any  outsider  may  attempt  to  influence,  but  who  is  bound  to 
decide,  as  far  as  he  can,  in  a  judicial  spirit  on  the  footing  of  the  evi- 
dence tendered.  Of  course  practic.^  is  not  up  to  the  level  of  theory  in 
Parliament  any  more  than  elsewhere  ;  still  there  is  little  solicitation  to 
members  of  committees,  and  an  almost  complete  absence  of  even  the  sus- 
picion of  corruption. 

"In  the  United  States,"  says  an  experienced  American  publicist, 
whose  opinion  I  have  inquired,  "though  lobbying  is  perfectly  legitimate 
in  theory,  yet  the  secrecy  and  want  of  personal  responsibility,  the  con- 
fusion and  want  of  system  in  the  committees,  make  it  rapidly  degenerate 
into  a  process  of  intrigue,  and  fall  into  the  hands  of  the  worst  men.  It  is 
so  disagreeable  and  humiliating  that  all  men  shrink  from  it,  unless  those 
who  are  stimulated  by  direct  pei'sonal  interest ;  and  these  soon  throw 
away  all  scruples.  The  most  dangerous  men  are  ex-members,  who  know 
how  things  are  to  be  managed." 

That  this  unfavourable  view  is  the  prevailing  one,  appears  not  merely 
from  what  one  hears  in  society  or  reads  in  the  newspapers,  though  in 
America  one  must  discount  a  gi'eat  deal  of  what  rumour  asserts  regard- 
ing illicit  influence,  but  from  the  constitutions  and  statutes  of  some  States, 
which  endeavour  to  repress  it. 

What  has  been  said  above  applies  equally  to  Congress  and  to  the 
State  legislatures,  and  to  some  extent  also  to  the  municipal  councils  of 
the  great  cities.  All  legislative  bodies  which  control  important  pecuni- 
ary interests  are  as  sure  to  have  a  lobby  as  an  army  to  have  its  camp- 
followers.  Where  the  body  is,  there  will  the  vultures  be  gathered 
together.  Great  and  wealthy  States,  like  New  York  and  Pennsylvania, 
support  the  largest  and  most  active  lobbies.  It  must,  however,  be  remem- 
bered that  although  no  man  of  good  position  would  like  to  be  called  a 
lobbyist,  still  such  men  are  often  obliged  to  do  the  work  of  lobbying  — 
i.e.  they  must  dance  attendance  on  a  committee,  and  endeavour  to  influ- 
ence its  members  for  the  sake  of  getting  their  measure  through.  They 
may  have  to  do  this  in  the  interests  of  the  good  government  of  a  city,  or 
the  reform  of  a  charity,  no  less  than  for  some  private  end. 

The  permanent  professional  staff  of  lobbyists  at  Washington  is  of  course 
from  time  to  time  recruited  by  persons  interested  in  some  particular  en- 
terprise, who  combine  with  one,  two,  or  more  professionals  in  trying  to 
push  it  through.  Thus  there  are  at  Washington,  says  Mr.  Spofford, 
"pension  lobbyists,  tariff  lobbyists,  steamship  subsidy  lobbyists,  railway 


THE  LOBBY  681 


lobbyists,  Indian  ring  lobbyists,  patent  lobbyists,  river  and  harbour 
lobbyists,  mining  lobbyists,  bank  lobbyists,  mail-contract  lobbyists,  war 
damages  lobbyists,  back-pay  and  bounty  lobbyists,  Isthmus  canal  lobby- 
ists, public  building  lobbyists.  State  claims  lobbyists,  cotton-tax  lobbyists, 
and  French  spoliations  lobbyists.  Of  the  office-seeking  lobbyists  at 
Washington  it  may  be  said  that  their  name  is  legion.  There  are  even 
artist  lobbyists,  bent  upon  wheedling  Congi-ess  into  buying  bad  paintings 
and  worse  sculptures  ;  and  too  frequently  with  success.  At  times  in  our 
history  there  has  been  a  British  lobby,  with  the  most  genteel  accompani- 
ments, devoted  to  watching  legislation  affecting  the  great  importing  and 
shipping  interests." 

A  committee  whose  action  can  affect  the  tariff  is  of  course  surrounded 
by  a  strong  lobby,  i  I  remember  to  have  heard  an  anecdote  of  a  quinine 
manufacturer,  who  had  kept  a  lawyer  as  his  agent  to  ' '  look  after ' '  a 
committee  during  a  whole  session,  and  prevent  them  from  touching  the 
duty  on  that  drug.  On  the  last  day  of  sitting  the  agent  went  home, 
thinking  the  danger  past.  As  soon  as  he  had  gone,  the  committee  sud- 
denly recommended  an  alteration  of  the  duty,  on  the  impulse  of  some 
one  who  had  been  watching  all  the  time  for  his  opportunity. 

Women  are  said  to  be  among  the  most  active  and  successful  lobbyists 
at  Washington. 

Efforts  have  been  made  to  check  the  practice  of  lobbying,  both  in 
Congress  and  in  State  legislatures.  Statutes  have  been  passed  severely 
punishing  any  person  who  offers  any  money  or  value  to  any  member 
with  a  view  to  influence  his  vote.'^  It  has  been  repeatedly  held  by  the 
courts  that  "  contracts  which  have  for  their  object  to  influence  legislation 
in  any  other  manner  than  by  such  open  and  public  presentation  of  facts, 
arg-uments,  and  appeals  to  reason,  as  are  recognized  as  proper  and  legit- 
imate with  all  public  bodies,  must  be   held  void."  ^    jt  i^as   also  been 

1  The  phrase  one  often  hears  "  there  was  a  strong  lobby  "  (i.e.  for  or  against 
such  and  such  a  bill)  denotes  that  the  interests  and  iniiueuces  represented  were 
numerous  and  powerful. 

2  As  to  Congress,  see  §  5450  of  Revised  Statutes  of  the  United  States.  The 
provisions  of  State  Statutes  are  too  numerous  to  mention.  See  p.  462.  Massa- 
chusetts has  recently  endeavoured  by  Statute  to  regulate  her  State  lobby, 
with  what  success  seems  still  doubtful. 

3  Cooley,  Constit.  Limit.,  p.  166.  He  refers  to  the  observations  of  Justice 
Chapman,  in  Frost  v.  Belmont,  6  Allen,  152:  — 

"  Though  Committees  properly  dispense  with  many  of  the  rules  which  reg- 
ulate hearings  before  judicial  tribunals,  yet  common  fairness  requires  that 
neither  party  shall  be  permitted  to  have  secret  consultations  and  exercise 
secret  influences  that  are  kept  from  the  knowledge  of  tlie  other  party.  Tlie 
business  of  'lobby  members  '  is  not  to  go  fairly  and  openly  before  the  commit- 
tees and  present  statements,  proofs,  and  arguments,  that  the  other  side  has  an 
opportunity  to  meet  and  refute  if  they  are  wrong,  but  to  go  secretly  to  the 
members  and  ply  them  with  statements  and  arguments  that  the  other  side 
cannot  openly  meet,  however  erroneous  they  maybe,  and  to  bring  illegitimate 
influences  to  bear  upon  them.  If  the  '  lobby  member  '  is  selected  because  of 
his  political  or  personal  influence,  it  aggravates  the  wrong.    If  his  business  is 


682  APPENDIX 


suggested  that  a  regular  body  of  attorneys,  authorized  to  act  as  agents 
before  committees  of  Congress,  should  be  created.  A  bill  for  this  pur- 
pose was  laid  before  the  Senate  in  January  1876. 


NOTE   TO   CHAPTER   XXVII 

THE    FEDERAL    SYSTEM    OF  THE    ENGLISH    UNIVERSITIES 

The  Structure  of  the  American  Federation  may  be  illustrated  by  a 
federal  system  familiar  to  many  Englishmen  from  its  existence  in  the 
two  ancient  universities  of  Oxford  and  Cambridge,  as  they  stood  consti- 
tuted twenty-five  years  ago.  The  analogy,  which  recent  legislation  has 
rendered  less  perfect  to-day  than  it  was  then,  appears  in  four  points. 

I.  Each  of  these  universities  was  then  for  some  purposes  a  federation 
of  colleges.  Every  member  of  it  was  also  a  member  of  some  college  or 
hall ;  1  as  no  one  can  be  an  active  citizen  of  the  United  States  who  is  not  a 
citizen  of  some  State.  The  colleges  made  up  the  university  as  the  States 
make  up  the  Union.  But  the  university  was  and  is  something  distinct 
from  the  colleges  taken  together.  It  has  a  sphere  of  its  own,  laws  of  its 
own,  a  government  of  its  own,  a  revenue  and  budget  of  its  own.  So  has 
each  of  the  colleges.  Each  member  has  two  patriotisms,  that  of  his 
college,  that  of  the  university  ;  just  as  each  American  citizen  has  his 
State  patriotism  as  well  as  his  national  patriotism. 

II.  The  university  lias  a  direct  and  immediate  jurisdiction  over  every 
one  of  its  members,  distinct  from  the  jurisdiction  exercised  by  the 
colleges  over  the  same  persons.  An  offender  may  be  punished  for  certain 
offences  by  a  university  tribunal,  for  certain  others  by  a  college  tribunal, 
for  some  by  both  tribunals.  So  every  citizen  lives  under  the  jurisdic- 
tion of  the  Union  as  well  as  under  that  of  his  State. 

to  unite  various  hiterests  by  means  of  projects  that  are  called  'log-rolling,'  it 
is  still  worse.  The  practice  of  procuring  members  of  tlie  legislature  to  act 
under  the  influence  of  what  they  have  eaten  and  drunk  at  houses  of  entertain- 
ment tends  to  render  those  who  yield  to  such  influences  wholly  unfit  to  act  in 
such  cases." 

1  By  a  recent  statute  of  the  University  of  Oxfoi-d  (which  I  take  for  the  sake 
of  simijlicity) ,  reverting  to  its  earlier  constitution  before  the  college  monopoly 
had  been  established,  persons  have  been  admitted  to  be  members  who  are 
not  members  of  any  college  or  hall;  they  are,  however,  treated  for  some 
purposes  as  collectively  constituting  a  community  similar  to  a  college.  They 
might  be  compared  to  United  States  citizens  resident  in  the  Territories,  were 
it  not  that  the  citizen  in  a  Territory  enjoys  no  share  in  the  national  govern- 
ment, whereas  the  Oxford  non-collegiate  graduate  can  vote  in  Convocation 
and  Congregation  and  for  the  election  of  members  of  Council. 

There  is  of  course  this  remarlvable  difference  between  the  two  cases  I  am 
comparing,  that  in  the  English  universities  the  university  is  older  than  the 
colleges,  whereas  in  America  the  States  are  older  than  the  nation.  Tlie 
federal  chai-acter  of  Oxford  dates  only  from  the  time  of  Archbishop  Laud. 


CONSTITUTION   OF   CONFEDERATE   STATES  G83 

III.  The  governing  authorities  of  the  university  are  created  partly  by 
the  direct  action  of  its  members  as  gi-aduates,  partly  by  that  of  the 
colleges  as  communities.  So  in  America  Congress  is  created  partly  by 
the  citizens  as  citizens,  partly  by  the  States  as  communities.  Before  the 
reforms  of  1854  the  part  played  by  the  colleges  was  much  greater  than  it 
is  now,  because  the  Council,  which  is  a  sort  of  Upper  House  of  the 
university  legislature,  consisted  entirely  of  heads  of  colleges. 

IV.  The  university  has  very  little  authority  over  the  colleges  as  corpo- 
I'ations,  and  indeed  scarcely  comes  in  contact  with  them  all.  Under  a 
recent  statute  they  are  obliged  to  make  certain  contributions  to  the 
university,  and  to  send  a  copy  of  their  accounts  to  a  university  office.  But 
they  are  self-governing ;  the  university  cannot  interfere  with  their  inter- 
nal management,  nor  with  the  exercise  of  their  jurisdiction  over  their  mem- 
bers, which  is  their  own  and  not  delegated  by  it.  So  the  States  exercise 
an  original  and  not  a  delegated  authority  over  their  citizens,  and  cannot 
be  controlled  by  the  national  government  in  I'espect  of  all  those  numer- 
ous matters  as  to  which  the  Constitution  leaves  them  free. 


NOTE  (A)  TO  CHAPTER   XXX 

CONSTITUTION    OF    THE    CONFEDERATE    STATES,    1861-65 

The  Constitution  adopted  11th  March  1861  by  the  Slave  States  which 
seceded  from  the  Union  and  formed  the  short-lived  Southern  Confederacy, 
was  a  reproduction  of  the  Federal  Constitution  of  1788-89,  with  certain 
variations  interesting  because  they  show  the  points  in  which  the  States' 
Rights  party  thought  the  Federal  Constitution  defective  as  inadequatelj^ 
safeguarding  the  rights  of  the  several  States,  and  because  they  embody 
certain  other  changes  which  have  often  been  advocated  as  likely  to  im- 
prove the  working  of  that  instrument. 

The  most  important  of  these  variations  are  the  following :  — 

Art.  i.  §  2.  A  provision  is  inserted  ijerinitting  the  impeachment  of  a  Federal 
officer  acting  within  the  limits  of  any  State  by  a  vote  of  two-thirds  of  the 
legislature  thereof. 

Art.  i. §  6.  There  is  added:  "Congress  may  by  law  grant  to  the  principal 
officer  in  each  of  the  executive  departments,  a  seat  upon  the  floor  of  either 
House,  with  the  privilege  of  discussing  any  measure  appertaining  to  liis 
department." 

Art.  i.  §  7.  The  President  is  permitted  to  veto  any  particular  item  or  items 
in  an  appropriation  bill. 

Art.  i.  §  8.  The  imposition  of  protective  duties  and  the  granting  of  bounties 
on  industry  are  forbidden,  and  the  granting  of  money  for  internal  improve- 
ments is  strictly  limited. 

Art.  i.  §  9.  Congress  is  forbiddeu  to  appropriate  money  from  the  Treasury, 
except  by  a  vote  of  two-thirds  of  both  Houses,  unless  it  be  asked  by  the  head 
of  a  department  and  submitted  by  the  President,  or  be  for  the  payment  of  its 


684  APPENDIX 


own  expenses,  or  of  claims  against  the  Confederacy  declared  by  a  judicial 
tribunal  to  be  just. 

Art.  ii.  §  1.  The  President  and  Vice-President  are  to  be  elected  for  six 
years,  and  the  President  is  not  to  be  re-eligible. 

Art.  ii.  §  2.  The  President  is  given  power  to  remove  the  highest  officials  at 
his  pleasure,  and  others  for  good  cause,  reporting  the  removals  to  the  Senate. 

Art.  V.  The  process  for  amending  the  Constitution  is  to  be  by  a  Convention 
of  all  the  States,  followed  by  the  ratitication  of  two-thirds  of  the  States, 

Of  these  changes,  the  third  and  fifth  were  obvious  improvements  ;  and 
much  may  be  said  in  favour  of  the  second,  seventh,  and  eighth.  The 
second  was  a  slight  approximation  towards  the  Cabinet  system  of 
England.  1 

I  omit  the  important  changes  relating  to  slavery,  which  was  fully  pro- 
tected, because  these  have  only  a  historical  interest. 

The  working  of  the  Constitution  of  the  Confederate  States  cannot  be 
fairly  judged,  because  it  was  conducted  under  the  exigencies  of  a  war, 
which  necessarily  gave  it  a  despotic  turn.  The  executive  practically  got 
its  way.  Congress  usually  sat  in  secret  and  "  did  little  beyond  register 
laws  prepared  by  the  executive,  and  debate  resolutions  for  the  vigorous 
conduct  of  the  war.  Outside  of  the  ordinary  powers  conferred  by  the 
legislature,  the  war  powers  openly  or  practically  exercised  by  the  execu- 
tive were  more  sweeping  and  general  than  those  assumed  by  President 
Lincoln." — (Alexander  Johnston  in  American  Cyclopcedia  of  Pulitical 
Science,  Art.  "  Confederate  States.") 


NOTE  (B)  TO  CHAPTER  XXX 

THE    FEDERAL    CONSTlTIiTIOX    OF    CANADA 

The  Federal  Constitution  of  the  Dominion  of  Canada  is  contained  in 
the  British  North  America  Act  1867,  a  statute  of  the  British  Parliament 
(30  Vict.  c.  3).-  I  note  a  few  of  the  many  points  in  which  it  deserves  to 
be  compared  Avith  that  of  the  United  States. 

The  Federal  or  Dominion  Government  is  conducted  on  the  so-called 
"  Cabinet  system  "  of  England,  i.e.  the  Ministry  sit  in  Parliament,  and 

1  A  singular  combination  of  the  Presidential  with  the  Cabinet  system  may 
be  found  in  the  pi-esent  Constitution  of  the  Hawaiian  kingdom,  promulgated 
7th  July  1887.  Framed  under  the  infliience  of  American  traditions,  it  keeps 
the  Cabinet,  which  consists  of  four  ministers,  out  of  the  legislature,  but  having 
an  irresponsil)le  hereditary  monarch,  it  is  obliged  to  give  the  legi.slature  the 
power  of  dismissing  them  by  a  vote  of  want  of  confidence.  The  legislature 
consists  of  two  sets  of  elective  members.  Nobles  (unpaid),  and  Representatives 
(paid) ,  who  sit  and  vote  together.  Two  successive  legislatures  can  alter  the 
Constitution  by  certain  prescribed  majorities:  the  Constitution  is  therefore  a 
Rigid  one. 

2  See  also  34  &  35  Vict.  c.  28,  and  49  and  50  Vict.  c.  35. 


THE   FEDERAL   CONSTITUTION   OF   CANADA  685 


hold  office  at  the  pleasure  of  the  House  of  Commons.  The  Governor- 
General  is  in  the  position  of  an  irresponsible  and  permanent  executive 
similar  to  that  of  the  Crown  in  Great  Britain,  acting  on  the  advice  of 
responsible  ministers.  He  can  dissolve  Parliament.  The  Upper  House  or 
Senate  is  composed  of  78  persons,  nominated  for  life  by  the  Governor- 
General,  i.e.  the  Ministry.  The  House  of  Commons  has  at  present  210 
members,  who  are  elected  for  five  years.  Both  senators  and  members 
receive  salaries.  The  Senate  has  very  little  power  or  influence.  The 
Governor-General  has  a  veto  but  rarely  exercises  it,  and  may  reserve  a 
bill  for  the  Queen's  pleasure.  The  judges,  not  only  of  the  Federal  or 
Dominion  Courts,  but  also  of  the  Provinces,  are  appointed  by  the  Crown, 
i.e.  by  the  Dominion  Ministry,  and  hold  for  good  behaviour. 

Each  of  the  Provinces,  at  present  seven  in  number,  has  a  legislature  of 
its  own,  which,  however,  consists  in  Ontario,  British  Columbia,  Manitoba, 
and  New  Brunswick,  of  one  House  only,  and  a  Lieutenant-Governor,  ap- 
pointed by  the  Dominion  Government,  with  a  right  of  veto  on  the  acts  of 
the  legislature,  which  he  seldom  exercises.  Members  of  the  Dominion 
Parliament  cannot  sit  in  a  Provincial  legislature. 

The  Governor-General  has  a  right  of  disallowing  acts  of  a  Provincial 
legislature,  and  sometimes  exerts  it,  especially  when  a  legislature  is 
deemed  to  have  exceeded  its  constitutional  competence. 

In  each  of  the  Provinces  there  is  a  responsible  Ministry,  working  on 
the  Cabinet  system  of  England,  the  Lieutenant-Governor  representing  the 
Crown  and  acting  as  a  sort  of  constitutional  sovereign. 

The  distribution  of  matters  within  the  competence  of  the  Dominion 
Parliament  and  of  the  Provincial  legislatures  respectively,  bears  a  general 
resemblance  to  that  existing  in  the  United  States ;  but  there  is  this 
remarkable  distinction,  that  whereas  in  the  United  States,  Congress  has 
only  the  powers  actually  granted  to  it,  the  State  legislatures  retaining  all 
such  powers  as  have  not  been  taken  from  them,  the  Dominion  Parliament 
has  a  general  power  of  legislation,  restricted  only  by  the  grant  of  certain 
specific  and  exclusive  powers  to  the  Provincial  legislatures  (§§  91-95). 
Criminal  law  is  reserved  for  the  Dominion  Parliament ;  and  no  province 
has  the  right  to  maintain  a  military  force.  Questions  as  to  the  constitu- 
tionality of  a  statute,  whether  of  the  Dominion  Parliament  or  of  a  Provin- 
cial legislature,  come  before  the  courts  in  the  ordinary  way,  and  if  appealed, 
before  the  Judicial  Committee  of  the  Privy  Council  in  England. 

The  Constitution  of  the  Dominion  was  never  submitted  to  popular  vote, 
and  can  be  altered  only  by  the  British  Parliament,  except  as  regards  cer- 
tain points  left  to  its  own  legislature.  It  was  drafted  by  a  sort  of  conven- 
tion in  Canada,  and  enacted  en  bloc  by  the  British  Parliament.  There 
exists  no  power  of  amending  the  Provincial  constitutions  by  popular  vote 
similar  to  that  which  the  people  of  the  several  States  exercise  in  the  United 
States. 


686  APPENDIX 


NOTE  TO  CHAPTER  XXXIII 

THE    DARTMOUTH    COLLEGE    CASE 

The  famous  case  of  Dartmouth  College  v.  Woodicard  (4  Wheat.  618) 
decided  in  1818,  has  been  so  often  brought  up  in  European  discussions, 
that  it  seems  proper  to  give  a  short  account  of  it,  taken  from  an  authori- 
tative source,  an  address  by  the  late  Mr.  Justice  Miller  (then  senior  justice, 
and  one  of  the  most  eminent  members,  of  the  Supreme  court),  delivered 
before  the  University  of  Michigan,  June  1887. 

"It  may  well  be  doubted  whether  any  decision  ever  delivered  by  any 
court  has  had  such  a  pervading  operation  and  influence  in  controlling  legis- 
lation as  this.  It  is  founded  upon  the  clause  of  the  Constitution  (Art.  i. 
§  10)  which  declares  that  no  State  shall  make  any  law  impairmg  the  obli- 
gation of  contracts. 

"Dartmouth  College  existed  as  a  corporation  under  a  charter  granted 
by  the  British  crown  to  its  trustees  in  New  Hampshire,  in  the  year  1769. 
This  charter  conferred  upon  them  the  entire  governing  power  of  the  col- 
lege, and  among  other  powers  that  of  filling  up  all  vacancies  occurring  in 
their  own  body,  and  of  removing  and  appointing  tutors.  It  also  declared 
that  the  number  of  trustees  should  for  ever  consist  of  twelve  and  no  more. 

"  After  the  Revolution,  the  legislature  of  New  Hampshire  passed  a  law 
to  amend  the  charter,  to  improve  and  enlarge  the  corporation.  It  increased 
the  number  of  trustees  to  twenty-one,  gave  the  appointment  of  the  addi- 
tional members  to  the  executive  of  the  State,  and  created  a  board  of  over- 
seers to  consist  of  twenty-five  persons,  of  whom  twenty-one  were  also  to 
be  appointed  by  the  executive  of  New  Hampshire.  These  overseers  had 
power  to  inspect  and  control  the  most  important  acts  of  the  trustees. 

"The  Supreme  court,  reversing  the  decision  of  the  Superior  court  of 
New  Hampshire,  held  that  the  original  charter  constituted  a  contract 
between  the  crown,  in  whom  the  power  was  then  vested  and  the  trustees 
of  the  college,  which  was  impaired  by  the  act  of  the  legislature  above 
referred  to.  The  opinion,  to  which  there  was  but  one  dissent,  establishes 
the  doctrine  that  the  act  of  a  government,  whether  it  be  by  a  charter  of 
the  legislature  or  of  the  crown,  which  creates  a  corporation,  is  a  contract 
between  the  state  and  the  corporation,  and  that  all  the  essential  franchises, 
powers,  and  benefits  conferred  upon  the  corporation  by  the  charter  become, 
when  accepted  by  it,  contracts  within  the  meaning  of  the  clause  of  the 
Constitution  referred  to. 

"  The  opinion  has  been  of  late  years  much  criticised,  as  including  with 
the  class  of  contracts  whose  foundation  is  in  the  legislative  action  of  the 
States,  many  which  were  not  properly  intended  to  be  so  included  by  the 
framers  of  the  Constitu.tion,  and  it  is  undoubtedly  true  that  the  Supreme 
court  itself  has  been  compelled  of  late  years  to  insist  in  this  class  of  cases 
upon  the  existence  of  an  actual  contract  by  the  State  with  the  corpora- 
tion, when  relief  is  sought  against  subsequent  legislation. 

"The  main  feature  of  the  case,  namely  that  a  State  can  make  a  con- 


EXTRACTS   FROM   CONSTITUTIONS  687 

tract  by  legislation,  as  well  as  in  any  other  way,  and  that  in  no  such  case 
shall  a  subsequent  act  of  the  legislature  intei'pose  any  effectual  barrier  to 
its  enforcement,  where  it  is  enforceable  in  the  ordinary  courts  of  justice, 
has  remained.  The  result  of  this  principle  has  been  to  make  void  in- 
numerable acts  of  State  legislatures,  intended  in  times  of  disastrous  finan- 
cial depression  and  suffering  to  protect  the  people  from  the  hardships  of  a 
rigid  and  prompt  enforcement  of  the  law  in  regard  to  their  contracts,  and 
to  prevent  the  .States  from  repealing,  abrogating,  or  avoiding  by  legisla- 
tion contracts  fairly  entered  into  with  other  parties. 

"This  decision  has  stood  from  the  day  it  was  made  to  the  present  hour 
as  a  great  bulwark  against  popular  effort  through  State  legislation  to  evade 
the  payment  of  just  debts,  the  performance  of  obligatory  contracts,  and 
the  general  repudiation  of  the  rights  of  creditors." 

As  here  intimated,  the  broad  doctrine  laid  down  in  this  case  has  been 
of  late  years  considerably  qualified  and  restricted.  It  has  also  become 
the  practice  for  States  making  contracts  by  grants  to  which  the  principle 
of  this  decision  could  apply,  to  reserve  power  to  vary  or. annul  them,  so 
as  to  leave  the  hands  of  the  State  free. 


NOTE  TO  CHAPTER  XLIX 

Specimens  of  Provisions  in  State  Constitutions  limiting  the  taxing  and 
borrowing  powers  of  State  Legislatures  and  local  authorities 

ARKANSAS:    Constitution  of  1874 

Article  XVI.  Section  1.  Neither  the  State  nor  any  city,  county, 
town,  or  other  municipality  in  this  State  shall  ever  loan  its  credit  for  any 
purpose  whatever.  Nor  shall  any  county,  city,  town,  or  other  municipal- 
ity ever  issue  any  interest  bearing  evidences  of  indebtedness,  except  such 
bonds  as  may  be  authorized  by  law  to  provide  for  and  secure  the  payment 
of  the  present  existing  indebtedness,  and  the  State  shall  never  issue  any 
interest-bearing  treasury  warrants  or  scrip. 

Section  7.  No  city,  town,  or  other  municipal  corporation  other  than 
provided  for  in  this  article,  shall  levy  or  collect  a  larger  rate  of  taxation 
in  any  one  year  on  the  property  thereof  than  one-half  of  one  per  centum 
of  the  value  of  such  property  as  assessed  for  State  taxation  during  the 
preceding  year. 

COLORADO:     Constitution  of  1875 

Article  XI.  Section  7.  No  debt  by  loan  in  any  form  shall  be  con- 
tracted by  any  school  district  for  the  purpose  of  erecting  and  furnishing 
school  buildings  or  purchasing  grounds,  unless  the  proposition  to  create 
such  debt  shall  first  be  submitted  to  such  qualified  electors  of  the  districts 
as  shall  have  paid  a  school  tax  therein  in  the  year  next  preceding  such 


APPENDIX 


election,  and  a  majority  of  those  voting  thereon  shall  vote  in  favour  of 
incurring  such  deht. 

Section  8.  No  city  or  town  shall  contract  any  debt  by  loan  in  any 
form,  except  by  means  of  an  ordinance,  which  shall  be  irrepealable  until 
the  indebtedness  therein  provided  for  shall  have  been  fully  paid  or  dis- 
charged, specifying  the  purposes  to  which  the  funds  to  be  raised  shall  be 
applied,  and  providing  for  the  levy  of  a  tax,  not  exceeding  twelve  mills 
on  each  dollar  of  valuation  of  taxable  property  within  such  city  or  town, 
sufficient  to  pay  the  annual  interest  and  extinguish  the  principal  of  such 
debt  within  fifteen,  but  not  less  than  ten  years  from  the  creation  thereof  ; 
and  such  tax,  when  coUected,  shall  be  applied  only  to  the  purposes  in 
such  ordinance  specified  until  the  indebtedness  shall  be  paid  or  dis- 
charged ;  but  no  such  debt  shall  be  created  unless  the  question  of  incur- 
ring the  same  shall,  at  a  regular  election  for  councilmen,  aldermen,  or 
officers  of  such  city  or  town,  be  submitted  to  a  vote  of  such  qualified 
electors  thereof  as  shall,  in  the  year  next  preceding,  have  paid  a  property- 
tax  therein,  and  a  majority  of  those  voting  on  the  question,  by  ballot 
deposited  in  a  separate  ballot  box,  shall  vote  in  favour  of  creating  such 
debt ;  but  the  aggregate  amount  of  debt  so  created,  together  with  the 
debt  existing  at  the  time  of  such  election,  shall  not  at  any  time  exceed 
three  per  cent  of  the  valuation  last  aforesaid.  Debts  contracted  for 
supplying  water  to  such  city  or  town  are  excepted  from  the  operation  of 
this  section. 

ILLINOIS  :  Constitution  of  1870 

Article  IX.  Section  8.  County  authorities  shall  never  assess  taxes, 
the  aggregates  of  which  shall  exceed  seventy-five  cents  per  one  hundred 
dollars  valuation,  except  for  the  payment  of  indebtedness  existing  at  the 
adoption  of  this  Constitution,  unless  authorized  by  a  vote  of  the  people 
of  the  county. 

Section  12.  No  county,  city,  township,  school  district,  or  other  muni- 
cipal corporation  shall  be  allowed  to  become  indebted  in  any  manner  or 
for  any  purpose  to  an  amount,  including  existing  indebtedness,  in  the 
aggregate  exceeding  five  per  centum  on  the  value  of  the  taxable  property 
therein,  to  be  ascertained  by  the  last  assessment  for  the  State  and  county 
taxes  previous  to  the  incurring  of  such  indebtedness. 

Any  county,  city,  school  district,  or  other  municipal  corporation  in- 
curring any  indebtedness  as  aforesaid,  shall,  before  or  at  the  time  of 
doing  so,  provide  for  the  collection  of  a  direct  annual  tax  sufiicient  to 
pay  the  interest  on  such  debt  as  it  falls  due,  and  also  to  pay  and  discharge 
the  principal  thereof  within  twenty  years  from  the  time  of  contracting  the 
same. 

CALIFORNIA:  Constitution  of  1879 

Article  XI.  Section  18.  No  county,  city,  town,  township.  Board  of 
Education,  or  school  district  shall  incur  any  indebtedness  or  liability  in 
any  manner,  or  for  any  purpose,  exceeding  in  any  year  the  income  and 
revenue  provided  for  it  for  such  year,  without  the  assent  of  two-thirds  of 


EXTRACTS   FROM   CONSTITUTIONS  689 


the  qualified  electors  thereof,  voting  at  an  election  to  be  held  for  that  pur- 
pose, nor  unless,  before  or  at  the  time  of  incurring  such  indebtedness, 
provision  shall  be  made  for  the  collection  of  an  annual  tax  sufficient  to 
pay  the  interest  on  such  indebtedness  as  it  falls  due,  and  also  to  consti- 
tute a  sinking  fund  for  the  payment  of  the  principal  thereof  within  twenty 
years  from  the  time  of  contracting  the  same.  Any  indebtedness  or  lia- 
bility incurred  contrary  to  this  provision  shall  be  void. 

NEW  YORK:  Constitutional  Amendment  of  1884 
(to  Art.  viii.  §  11  of  Constitution  of  1846) 
• 
No  county  containing  a  city  of  over  one  hundred  thousand  inhabitants, 
or  any  such  city,  shall  be  allowed  to  become  indebted  for  any  purpose  or 
in  any  manner  to  an   amount   which,  including   existing   indebtedness, 
shall  exceed  ten  per  centum  of  the  assessed  valuation  of  the  real  estate  of 
such  county  or  city  subject  to  taxation. 

The  amount  hereafter  to  be  raised  by  tax  for  county  or  city  purposes 
in  any  county  containing  a  city  of  over  one  hundred  thousand  inhabitants, 
or  any  such  city  of  this  State,  in  addition  to  providing  for  the  principal 
and  interest  of  existing  debt,  shall  not  in  the  aggregate  exceed  in  any  one 
year  two  per  centum  of  the  assessed  valuation  of  the  real  personal  estate 
of  such  county  or  city. 


VOL.  I  2  T 


ARTICLES    OF    CONFEDERATION,    1781-1788 


Articles  of  Confederation  and  Perpetual  Union  beticeen  the  States  of  New 
Hampshire,  Massachusetts  Bay,  Bhode  Island  and  Providence  Plan- 
tations, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia. 

Article  I.  The  style  of  this  confederacy  shall  be,  "  The  United  States 
of  America." 

Art.  II.  Each  State  retains  its  sovereignty,  freedom,  and  indepen- 
dence, and  every  power,  jurisdiction,  and  right,  which  is  not  by  this  con- 
federation expressly  delegated  to  the  United  States  in  Congress  assembled. 

Art.  III.  The  said  States  hereby  severally  enter  into  a  firm  league  of 
friendship  with  each  other,  for  their  common  defence,  the  security  of 
their  liberties,  and  their  nnitual  and  general  welfare,  binding  themselves 
to  assist  each  other  against  all  force  offered  to,  or  attacks  made  upon 
them,  or  any  of  them,  on  account  of  religion,  sovereignty,  trade,  or  any 
other  pretence  whatever. 

Art.  IV.  The  better  to  secure  and  perpetuate  mutual  friendship  and 
intercourse  among  the  people  of  the  different  States  in  this  Union,  the 
free  inhabitants  of  each  of  these  States,  paupers,  vagabonds,  and  fugitives 
from  justice  excepted,  shall  be  entitled  to  all  privileges  and  immunities  of 
free  citizens  in  the  several  States  ;  and  the  people  of  each  State  shall  have 
free  ingress  and  regress  to  and  from  any  other  State,  and  shall  enjoy  therein 
all  the  privileges  of  trade  and  commerce,  subject  to  the  same  duties, 
impositions,  and  restrictions,  as  the  inhabitants  thereof  respectively  ;  pro- 
vided that  such  restrictions  shall  not  extend  so  far  as  to  prevent  the 
removal  of  property  imported  into  any  State,  to  any  other  State  of  which 
the  owner  is  an  inhabitant  ;  provided,  also,  that  no  imposition,  duties,  or 
restriction,  shall  be  laid  by  any  State  on  the  property  of  the  United  States, 
or  either  of  them. 

If  any  person  guilty  of,  or  charged  with,  treason,  felony,  or  other  high 
misdemeanour  in  any  State,  shall  flee  from  justice,  and  be  found  in  any 
of  the  United  States,  he  shall,  upon  demand  of  the  governor  or  executive 
power  of  the  State  from  which  he  fled,  be  delivered  up,  and  removed  to 
the  State  having  jurisdiction  of  his  offence. 

Full  faith  and  credit  shall  be  given,  in  each  of  these  States,  to  the 

690 


AllTICLES   OF   CONFEDERATION  691 

records,  acts,  and  judicial  proceedings  of  the  courts  and  magistrates  of 
every  otlier  State. 

Art.  V.  For  tlie  more  convenient  management  of  the  general  inter- 
ests of  the  United  States,  delegates  shall  be  annually  appointed  in  such 
manner  as  the  legislature  of  each  State  shall  direct,  to  meet  in  Congi-ess 
on  the  first  Monday  in  November,  in  every  year,  with  a  power  reserved 
to  each  State  to  recall  its  delegates,  or  any  of  them,  at  any  time  within 
the  year,  and  to  send  others  in  their  stead  for  the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor  by 
more  than  seven  members  ;  and  no  person  shall  be  capable  of  being  a 
delegate  for  more  than  three  years,  in  any  term  of  six  years  ;  nor  shall 
any  person,  being  a  delegate,  be  capable  of  holding  any  office  under  the 
United  States,  for  which  he,  or  another  for  his  benefit,  receives  any  salary, 
fees,  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  any  meeting  of  the 
States,  and  while  they  act  as  members  of  the  committee  of  the  States. 

In  determining  questions  in  the  United  States,  in  Congress  assembled, 
each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached  or 
questioned  in  any  court  or  place  out  of  Congress  ;  and  the  members  of 
Congress  shall  be  protected  in  their  persons  from  arre.sts  and  imprison- 
ments during  the  time  of  their  going  to  and  from,  and  attendance  on 
Congress,  except  for  treason,  felony,  or  breach  of  the  peace. 

Art.  VI.  No  State,  without  the  consent  of  the  United  States,  in 
Congress  assembled,  shall  send  any  embassy  to,  or  receive  any  embassy 
from,  or  enter  into  any  conference,  agreement,  alliance,  or  treaty,  with 
any  king,  prince,  or  state  ;  nor  shall  any  person  holding  any  office  of 
profit  or  trust  under  the  United  States,  or  any  of  them,  accept  of  any 
present,  emolument,  office,  or  title  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  state  ;  nor  shall  the  United  States,  in  Congress  as- 
sembled, or  any  of  them,  gxant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation,  or 
alliance  whatever  between  them,  without  the  consent  of  the  United 
States,  in  Congress  assembled,  specifying  accurately  the  purposes  for 
which  the  same  is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  States  shall  lay  any  imposts  or  duties  which  may  interfere  with 
any  stipulations  in  treaties  entered  into  by  the  United  States,  in  Con- 
gress assembled,  with  any  king,  prince,  or  state,  in  pursuance  of  any 
treaties  already  proposed  by  Congress  to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State, 
except  such  number  only  as  shall  be  deemed  necessary  by  the  United 
States,  in  Congress  assembled,  for  the  defence  of  such  State  or  its  trade  ; 
nor  shall  any  body  of  forces  be  kept  up  by  any  State,  in  time  of  peace, 
except  such  number  only  as,  in  the  judgment  of  the  United  States,  in 
Congress  assembled,  shall  be  deemed  requisite  to  garrison  the  forts  nec- 
essary for  the  defence  of  such  State  ;  but  every  State  shall  always  keep 
up  a  well-regulated  and  disciplined  militia,  su.fficient]y  armed  and  ac- 
coutred, and  shall  provide  and  constantly  have  ready  for  use,  in  public 


692  APPENDIX 


stores,  a  due  uuniber  of  field-pieces  and  tents,  and  a  proper  quantity  of 
arms,  amnuuiition,  and  camp  equipage. 

No  State  sliall  engage  in  any  war  witliout  tlie  consent  of  the  United 
States,  in  Congress  assembled,  unless  such  State  be  actually  invaded  by 
enemies,  or  shall  have  received  certain  advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to  invade  such  State,  and  the  danger 
is  so  imminent  as  not  to  admit  of  a  delay  till  the  United  States,  in  Con- 
gress assembled,  can  be  consulted  ;  nor  shall  any  State  grant  commis- 
sions to  any  ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal, 
except  it  be  after  a  declaration  of  war  by  the  United  States,  in  Congress 
assembled,  and  then  only  against  the  kingdom  or  state,  and  the  subjects 
thereof  against  which  war  has  been  so  declared,  and  under  such  regula- 
tions as  shall  be  established  by  the  United  States,  in  Congress  assembled, 
unless  such  State  be  invested  by  pirates,  in  which  case  vessels  of  war 
may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the  danger  shall 
continue,  or  until  the  United  States,  in  Congi'ess  assembled,  shall  deter- 
mine otherwise. 

Art.  VII.  When  land  forces  are  raised  by  any  State  for  the  common 
defence,  all  officers  of  or  under  the  rank  of  colonel  shall  be  appointed 
by  the  legislature  of  each  State  respectively  by  whom  such  forces  shall 
be  raised,  or  in  such  manner  as  such  State  shall  direct,  and  all  vacancies 
shall  be  filled  up  by  the  State  which  first  made  the  appointment. 

Art.  VIII.  All  charges  of  war,  and  all  other  expenses  that  shall  be 
incurred  for  the  common  defence  or  general  welfare,  and  allowed  by  the 
United  States,  in  Congress  assembled,  shall  be  defrayed  out  of  a  common 
treasury,  which  shall  be  supplied  by  the  several  States,  in  proportion  to 
the  vahie  of  all  land  within  each  State,  granted  to,  or  surveyed  for,  any 
person,  as  such  land  and  the  buildings  and  improvements  thereon  shall 
be  estimated  according  to  such  mode  as  the  United  States,  in  Congress 
assembled,  shall,  from  time  to  time,  direct  and  appoint.  The  taxes  for 
paying  that  proportion  shall  be  laid  and  levied  by  the  authority  and 
direction  of  the  legislatures  of  the  several  States,  within  the  time  agreed 
upon  by  the  United  States,  in  Congress  assembled. 

Art.  IX.  The  United  States,  in  Congress  assembled,  shall  have  the 
sole  and  exclusive  right  and  power  of  determining  on  peace  and  war, 
except  in  the  cases  mentioned  in  the  sixth  Article  ;  of  sending  and 
receiving  ambassadors  ;  entering  into  treaties  and  alliances,  provided 
that  no  treaty  of  commerce  shall  be  made  whereby  the  legislative  power 
of  the  respective  States  shall  be  restrained  from  imposing  such  imposts 
and  duties  on  foreigners,  as  their  own  people  are  subjected  to,  or  from 
prohibiting  the  exportation  or  importation  of  any  species  of  goods  or 
commodities  whatsoever  ;  of  establishing  rules  for  deciding,  in  all  cases, 
what  captures  on  land  or  water  shall  be  legal,  and  in  what  manner  prizes 
taken  by  land  or  naval  forces  in  the  service  of  the  United  States  shall  be 
divided  or  appropriated  ;  of  granting  letters  of  marque  and  reprisal  in 
times  of  peace  ;  appointing  courts  for  the  trial  of  piracies  and  felonies 
committed  on  the  high  seas  ;  and  establishing  courts  for  receiving  and 
determining  finally  appeals  in  all  cases  of  capture  ;  provided  that  no 


ARTICLES   OF   CONFEDERATION  C93 


member  of  Congress  shall  be  appointed  as  judge  of  any  of  the  said 
courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last  resort 
on  appeal,  in  all  disputes  and  differences  now  subsisting,  or  that  hereafter 
may  arise  between  two  or  more  States  concerning  boundary,  jurisdiction, 
or  any  other  cause  whatever  ;  which  authority  shall  always  be  exercised  in 
the  manner  following :  Whenever  the  legislative  or  executive  authority,  or 
lawful  agent  of  any  State  in  controversy  with  another,  shall  present  a 
petition  to  Congress,  stating  the  matter  in  question,  and  praying  for  a  hear- 
ing, notice  thereof  shall  be  given  by  order  of  Congress  to  the  legislative  or 
executive  authority  of  the  other  State  in  controversy,  and  a  day  assigned 
for  the  appearance  of  the  parties  by  their  lawful  agents,  who  shall  then  be 
directed  to  appoint,  by  joint  consent,  commissioners  or  judges  to  consti- 
tute a  court  for  hearing  and  determining  the  matter  in  question  ;  but  if 
they  cannot  agree.  Congress  shall  name  three  persons  out  of  each  of  the 
United  States,  and  from  the  list  of  such  persons  each  party  shall  alter- 
nately strike  out  one,  the  petitioners  beginning,  until  the  number  shall  be 
reduced  to  thirteen  ;  and  from  that  number  not  less  than  seven  nor  more 
than  nine  names,  as  Congress  shall  direct,  shall,  in  the  presence  of  Con- 
gress, be  drawn  out  by  lot ;  and  the  persons  whose  names  shall  be  so 
drawn,  or  any  five  of  them,  shall  be  commissioners  or  judges,  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major  part  of  the  judges 
who  shall  hear  the  cause  shall  agree  in  the  determination  ;  and  if  either 
party  shall  neglect  to  attend  at  the  day  appointed,  without  showing  rea- 
sons which  Congress  shall  judge  sufficient,  or  being  present,  shall  refuse 
to  strike,  the  Congress  shall  proceed  to  nominate  three  persons  out  of 
each  State,  and  the  secretary  of  Congress  shall  strike  in  behalf  of  such 
party  absent  or  refusing  ;  and  the  judgment  and  sentence  of  the  court,  to 
be  appointed  in  the  manner  before  prescribed,  shall  be  final  and  conclu- 
sive ;  and  if  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear  or  defend  their  claim  or  cause,  the  court  shall 
nevertheless  proceed  to  pronounce  sentence  or  judgment,  which  shall  in 
like  manner  be  final  and  decisive  ;  the  judgment  or  sentence  and  other 
proceedings  being  in  either  case  transmitted  to  Congress,  and  lodged 
among  the  acts  of  Congress  for  the  security  of  the  parties  concerned  ;  pro- 
vided, that  every  commissioner,  before  he  sits  in  judgment,  shall  take 
an  oath,  to  be  administered  by  one  of  the  judges  of  the  superior  court 
of  the  State  where  the  cause  shall  be  tried,  "well  and  truly  to  hear 
and  determine  the  matter  in  question,  according  to  the  best  of  his  judg- 
ment, without  favour,  affection,  or  hope  of  reward."  Provided,  also, 
that  no  State  shall  be  deprived  of  temtory  for  the  benefit  of  the  United 
States. 

All  controversies  concerning  the  private  right  of  soil  claimed  under  dif- 
ferent grants  of  two  or  more  States,  whose  jurisdictions,  as  they  may  respect 
such  lands,  and  the  States  which  passed  such  grants,  are  adjusted,  the  said 
grants  or  either  of  them  being  at  the  same  time  claimed  to  have  originated 
antecedent  to  such  settlement  of  jurisdiction,  shall,  on  the  petition  of 
either  party  to  the  Congress  of  the  United  States,  be  finally  determined, 


694  APPENDIX 


as  near  as  may  be,  in  the  same  manner  as  is  before  prescribed  for  decid- 
ing disputes  respecting  territorial  jurisdiction  between  different  States. 

Tlie  United  States,  in  Congress  assembled,  shall  also  have  the  sole  and 
exclusive  right  and  power  of  regulating  the  alloy  and  value  of  coin  struck 
by  their  own  authority,  or  by  that  of  the  respective  States ;  fixing  the 
standard  of  weights  and  measures  throughout  the  United  States  ;  regulat- 
ing the  trade  and  managing  all  affairs  with  the  Indians  not  members  of 
any  of  the  States  ;  provided  that  the  legislative  right  of  any  State,  within 
its  own  limits,  be  not  infringed  or  violated  ;  establishing  and  regulating 
post-othces  from  one  State  to  another  throughout  all  the  United  States, 
and  exacting  such  postage  on  the  papers  passing  through  the  same  as  may 
be  required  to  defray  the  expenses  of  the  said  ofltice  ;  appointing  all  officers 
of  the  land  forces  in  the  service  of  the  United  States,  excepting  regimental 
officers  ;  appointing  all  the  officers  of  the  naval  forces,  and  commissioning 
all  officers  whatever  in  the  service  of  the  United  States  ;  making  rules  for 
the  government  and  i-egulation  of  the  said  land  and  naval  forces,  and  di- 
recting their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority  to  ap- 
point a  committee,  to  sit  in  the  recess  of  Congress,  to  be  denominated  "A 
Committee  of  the  States,"  and  to  consist  of  one  delegate  from  each  State  ; 
and  to  appoint  such  other  committees  and  civil  officers  as  may  be  necessary 
for  managing  the  general  affairs  of  the  United  States  under  their  direction  ; 
to  appoint  one  of  their  number  to  preside,  provided  that  no  person  be  al- 
lowed to  serve  in  the  office  of  president  more  than  one  year  in  any  term  of 
three  years ;  to  ascertain  the  necessary  sums  of  money  to  be  raised  for 
the  service  of  the  United  States,  and  to  appropriate  and  apply  the  same 
for  defraying  the  public  expenses  ;  to  borrow  money  or  emit  bills  on  the 
credit  of  the  United  States,  transmitting  every  half  year  to  the  respective 
States  an  account  of  the  sums  of  money  so  borrowed  or  emitted  ;  to  build 
and  equip  a  navy  ;  to  agree  upon  the  number  of  land  forces,  and  to  make 
requisitions  from  each  State  for  its  quota,  in  proportion  to  the  number  of 
white  inhabitants  in  such  State,  which  requisition  shall  be  binding  ;  and 
thereupon  the  legislature  of  each  State  shall  appoint  the  regimental  offi- 
cers, raise  the  men,  and  clothe,  arm,  and  equiji  them  in  a  soldier-like  man- 
ner at  the  expense  of  the  United  States  ;  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed,  and 
within  the  time  agreed  on  by  the  United  States,  in  Congress  assembled  ; 
but  if  the  United  States,  in  Congress  assembled,  shall,  on  consideration  of 
circumstances,  judge  proper  that  any  State  should  not  raise  men,  or  should 
raise  a  smaller  number  than  its  quota,  and  that  any  other  State  should 
raise  a  greater  number  of  men  than  the  quota  thereof,  such  extra  number 
shall  be  raised,  officered,  clothed,  armed,  and  equipped  in  the  same  manner 
as  the  quota  of  such  State,  unless  the  legislature  of  such  State  shall  judge 
that  such  extra  number  cannot  be  safely  spared  out  of  the  same,  in  which 
case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of  such  extra 
number  as  they  judge  can  be  safely  spared,  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed,  and 
within  the  time  agreed  on  by  the  United  States,  in  Congress  assembled. 


ARTICLES   OF   CONFEDERATION  695 


The  United  States,  in  Congress  assembled,  shall  never  engage  in  a  war, 
nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into 
any  treaties  or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof, 
nor  ascertain  the  sums  and  expenses  necessary  for  the  defence  and  welfare 
of  the  United  States,  or  any  of  them,  nor  emit  bills,  nor  borrow  money 
on  the  credit  of  the  United  States,  nor  appropriate  money  nor  agree  upon 
the  number  of  vessels  of  war  to  be  built  or  purchased,  or  the  number  of 
land  or  sea  forces  to  be  raised,  nor  appoint  a  commander-in-chief  of  the 
army  or  navy,  unless  nine  States  assent  to  the  same,  nor  shall  a  question 
on  any  other  point,  except  for  adjourning  from  day  to  day,  be  determined, 
unless  by  the  votes  of  a  majority  of  the  United  States,  in  Congress  as- 
sembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to  any 
time  within  the  year,  and  to  any  place  within  the  United  States,  so  that 
no  period  of  adjournment  be  for  a  longer  duration  than  the  space  of  six 
months,  and  shall  publish  the  journal  of  their  proceedings  monthly, 
except  such  parts  thereof  relating  to  treaties,  alliances,  or  military  opera- 
tions as  in  their  judgment  require  secrecy  ;  and  the  yeas  and  nays  of  tlie 
delegates  of  each  State  on  any  question,  shall  be  entered  on  the  journal, 
when  it  is  desired  by  any  delegate  ;  and  the  delegates  of  a  State,  or  any 
of  them,  at  his  or  their  request,  shall  be  furnished  with  a  transcript  of 
the  said  journal,  except  such  parts  as  are  above  excepted,  to  lay  before 
the  legislatures  of  the  several  States. 

Art.  X.  The  committee  of  the  States,  or  any  nine  of  them,  shall  be 
authorized  to  execute,  in  the  recess  of  Congress,  such  of  the  powers  of 
Congress  as  the  United  States,  in  Congress  assembled,  by  the  consent  of 
nine  States,  shall,  from  time  to  time,  think  expedient  to  vest  them  with ; 
provided  that  no  power  be  delegated  to  the  said  committee,  for  the 
exercise  of  which,  by  the  Articles  of  Confederation,  the  voice  of  nine 
States,  in  the  Congress  of  the  United  States  assembled,  is  requisite. 

Art.  XI.  Canada  acceding  to  this  Confederation,  and  joining  in  the 
measures  of  the  United  States,  shall  be  admitted  into,  and  entitled  to  all 
the  advantages  of  this  Union  ;  but  no  other  colony  shall  be  admitted  into 
the  same  unless  such  admission  be  agreed  to  by  nine  States. 

Art.  XII.  All  bills  of  credit  emitted,  moneys  borrowed,  and  debts 
contracted  by  or  under  the  authority  of  Congress,  before  the  assembling 
of  the  United  States,  in  pursuance  of  the  present  Confederation,  shall  be 
deemed  and  considered  as  a  charge  against  the  United  States,  for  payment 
and  satisfaction  wliereof  the  said  United  States  and  the  public  faith  are 
hereby  solemnly  pledged. 

Art.  XIII.  Every  State  shall  abide  by  the  determinations  of  the 
United  States,  in  Congress  assembled,  on  all  questions  which  by  this 
Confederation  are  submitted  to  them.  And  the  Articles  of  this  Confed- 
eration shall  be  inviolably  observed  by  every  State,  and  the  Union  shall 
be  perpetual ;  nor  shall  any  alteration  at  any  time  hereafter  be  made  in 
any  of  them,  unless  such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States,  and  be  afterwards  confirmed  by  the  legislatures  of  every 
State. 


690 


APPENDIX 


A7id  tohereas  it  hath  pleased  the  great  Governor  of  the  world  to  incline 
the  hearts  of  the  legislatures  we  respectively  represent  in  Congress  to 
approve  of,  and  to  authorize  us  to  ratify  the  said  Articles  of  Confederation 
and  perpetual  Union,  Know  ye,  that  we,  the  undersigned  delegates,  by 
virtue  of  the  power  and  authority  to  us  given  for  that  purpose,  do,  by 
these  presents,  in  the  name  and  in  behalf  of  our  respective  constituents, 
fully  and  entirely  ratify  and  confirm  each  and  every  of  the  said  Articles 
of  Confederation  and  perpetual  Union,  and  all  and  singular  the  matters 
and  things  therein  contained.  And  we  do  further  solemnly  plight  and 
engage  the  faith  of  our  respective  constituents,  that  they  shall  abide  by 
the  determinations  of  the  United  States,  in  Congress  assembled,  on  all 
questions  which  by  the  said  Confederation  are  submitted  to  them;  and 
that  the  Articles  thereof  shall  be  inviolably  observed  by  the  States  we 
respectively  represent,  and  that  the  Union  shall  be  perpetual.  In  witness 
whereof  we  have  hereunto  set  our  hands  in  Congress.  Done  at  Philadel- 
phia, in  the  State  of  Pennsylvania,  the  ninth  day  of  July,  in  the  year  of 
our  Lord  1778,  and  in  the  third  year  of  the  Independence  of  America. 


[These  Articles  were  not  ratified  by  all  the  States  until  1st  March 
1781,  when  the  delegates  of  Maryland,  the  latest  in  ratifying,  signed  for 
her".  ] 


CONSTITUTION  OF  THE  UNITED  STATES 


We,  the  people  of  the  United  States,  in  order  to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquillity,  provide  for  the 
common  defence,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. 

ARTICLE   I 

Section  1.  All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congi'ess  of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Representatives. 

Sec.  2.  The  House  of  Representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  States,  and  the 
electors  in  each  State  shall  have  the  qualifications  requisite  for  electors  of 
the  most  numerous  branch  of  the  State  legislature. 

No  person  shall  be  a  ReiDresentative  who  shall  not  have  attained  to  the 
age  of  twenty-iive  years,  and  been  seven  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

[Representatives  and  direct  taxes  shall  be  apportioned  among  the  sev- 
eral States  which  may  be  included  within  this  Union,  according  to  their 
respective  numbers,  which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  service  for  a  terra  of 
years,  and  excluding  Indians  not  taxed,  three-fifths  of  all  other  persons.]  ^ 
The  actual  enumeration  shall  be  made  within  three  years  after  the  first 
meeting  of  the  Congress  of  the  United  States,  and  within  every  subse- 
quent term  of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  Representatives  shall  not  exceed  one  for  every  thirty  thousand, 
but  each  State  shall  have  at  least  one  Representative  ;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled 
to  choose  three,  Massachusetts  eight,  Rhode  Island  and  Providence  Plan- 
tations one,  Connecticut  five,  New  York  six,  New  Jersey  four,  Pennsyl- 
vania eight,  Delaware  one,  Maryland  six,  Virginia  ten.  North  Carolina 
five,  South  Carolina  five,  and  Georgia  three. 

1  The  clause  included  in  brackets  is  amended  by  the  XlVth  Amendment, 
2d  section. 


698  APPENDIX 


When  vacancies  happen  in  the  representation  from  any  State,  the  ex- 
ecutive authority  tliereof  shall  issue  writs  of  election  to  fill  such  vacan- 
cies. 

The  House  of  Representatives  shall  choose  their  speaker  and  other 
officers  ;  and  shall  have  the  sole  power  of  impeachment. 

Sec.  3.  The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  chosen  by  the  legislature  thereof,  for  six  years  ; 
and  each  Senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of  the  first 
election,  they  shall  be  divided  as  equally  as  may  be  into  three  classes. 
The  seats  of  the  Senators  of  the  first  class  shall  be  vacated  at  the  expira- 
tion of  the  second  year,  of  the  second  class  at  the  expiration  of  the  fourth 
year,  and  of  the  third  class  at  the  expiration  of  the  sixth  year,  so  that 
one-third  may  be  chosen  every  second  year  ;  and  if  vacancies  happen  by 
resignation,  or  otherwise,  during  the  recess  of  the  legislature  of  any  State, 
the  executive  thereof  may  make  temporary  appointments  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have  attained  to  the  age  of 
thirty  years,  and  been  nine  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

The  Vice-President  of  the  United  States  shall  be  President  of  the  Sen- 
ate, but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  Senate  shall  choose  their  other  officers,  and  also  a  president  ^ro 
tempore,  in  the  absence  of  the  Vice-President,  or  when  he  shall  exercise 
the  office  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments.  When 
sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation.  When  the 
President  of  the  United  States  is  tried,  the  Chief  Justice  shall  preside  ; 
and  no  person  shall  be  convicted  without  the  concurrence  of  two-thirds  of 
the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  farther  than  to 
removal  from  office,  and  disqualification  to  hold  and  enjoy  any  office  of 
honour,  trust,  or  profit  under  the  United  States  ;  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment  according  to  law. 

Sec.  4.  The  times,  places,  and  manner  of  holding  elections  for  Sena- 
tors and  Representatives  shall  be  prescribed  in  each  State  by  the  legisla- 
ture thereof ;  but  the  Congress  may  at  any  time  by  law  make  or  alter 
such  regulations,  except  as  to  the  places  of  choosing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  year,  and  such 
meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall  by 
law  appoint  a  different  day. 

Sec.  5.  Each  house  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members,  and  a  majority  of  each  shall  constitute 
a  quorum  to  do  business  ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of  absent  members, 
in  such  manner,  and  under  such  penalties  as  each  house  may  provide. 


CONSTITUTION   OF   THE   UNITED    STATES  699 

Each  house  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behaviour,  and,  with  the  concurrence  of  two- 
thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  parts  as  may  in  their  judgment 
require  secrecy  ;  and  the  yeas  and  nays  of  the  members  of  either  house 
on  any  question  shall,  at  the  desire  of  one-fifth  of  those  present,  be 
entered  on  the  journal. 

Neither  house,  during  the  session  of  Congress,  shall,  without  the  con- 
sent of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  houses  shall  be  sitting. 

Sec.  G.  The  Senators  and  Representatives  shall  receive  a  compensa- 
tion for  their  services,  to  be  ascertained  by  law,  and  paid  out  of  the  Treas- 
ury of  the  United  States.  They  shall  in  all  cases,  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from  arrest  during  their  attendance 
at  the  session  of  their  respective  houses,  and  in  going  to  and  returning 
from  the  same  ;  and  for  any  speech  or  debate  in  either  house  they  shall 
not  be  questioned  in  any  other  place. 

No  Senator  or  Representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time  ;  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house  during  his 
continuance  in  office. 

Sec.  7.  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives  ;  but  the  Senate  may  propose  or  concur  with  amend- 
ments as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate  shall,  before  it  become  a  law,  be  presented  to  the  President 
of  the  United  States ;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall 
return  it,  with  his  objections,  to  that  house  in  which  it  shall  have  origi- 
nated, who  shall  enter  the  objections  at  large  on  their  journal,  and  proceed 
to  reconsider  it.  If  after  such  reconsideration  two-thirds  of  that  house 
shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the  objections, 
to  the  other  house,  by  which  it  shall  likewise  be  reconsidered,  and  if 
approved  by  two-thirds  of  that  house,  it  shall  become  a  law.  But  in  all  such 
cases  the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays,  and 
the  names  of  the  persons  voting  for  and  against  the  bill  shall  be  entered 
on  the  journal  of  each  house  respectively.  If  any  bill  shall  not  be 
returned  by  the  President  within  ten  days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  same  shall  be  a  law,  in  like  manner 
as  if  he  had  signed  it,  unless  the  Congress  by  their  adjournment  prevent 
its  return,  in  which  case  it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of  the  Sen- 
ate and  House  of  Representatives  may  be  necessary  (except  on  a  ques- 
tion of  adjournment)  shall  be  presented  to  the  President  of  the  United 
States ;  and  before  the  same  shall  take  effect  shall  be  approved  by  him, 
or  being  disapproved  by  him,  shall  be  repassed  by  two-thirds   of  the 


700  APPENDIX 


Senate  and  House  of  Eepresentatives,  according  to  the  rules  and  limita- 
tions prescribed  in  the  case  of  a  bill. 

Sec.  8.  The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  to  pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States  ;  but  all  duties,  imposts,  and 
excises  shall  be  uniform  throughout  the  United  States  ; 

To  borrow  money  on  the  credit  of  the  United  States  ; 

To  regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes  ; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies  throughout  the  United  States  ; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin,  and  fix 
the  standard  of  weights  and  measures  ; 

To  provide  for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States  ; 

To  establish  post-offices  and  post-roads. 

To  promote  the  progress  of  science  and  useful  arts,  by  securing  for 
limited  times  to  authors  and  inventors  the  exclusive  right  to  their  respec- 
tive writings  and  discoveries  ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

To  define  and  punish  piracies  and  felonies  committed  on  the  high  seas, 
and  offences  against  the  law  of  nations. 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make  rules 
concerning  captures  on  land  and  water ; 

To  raise  and  support  armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years  ; 

To  provide  and  maintain  a  navy  ; 

To  make  rules  for  the  government  and  regulation  of  the  land  and  naval 
forces  ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections,  and  repel  invasions  ; 

To  provide  for  organizing,  arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the  service  of  the 
United  States,  reserving  to  the  States  respectively  the  appointment  of  the 
officers  and  the  authority  of  training  the  militia  according  to  the  disci- 
pline prescribed  by  Congress  ; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over  such  dis- 
trict (not  exceeding  ten  miles  square)  as  may,  by  cession  of  particular 
States,  and  the  acceptance  of  Congi'ess,  become  the  seat  of  the  Govern- 
ment of  the  United  States,  and  to  exercise  like  authority  over  all  places 
purchased  by  the  consent  of  the  legislature  of  the  State  in  which  the 
same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dockyards, 
and  other  needful  buildings  ;  and 

To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers  vested  by  this  Con- 
stitution in  the  Government  of  the  United  States,  or  in  any  department 
or  officer  thereof. 

Sec.  9.    The  migration  or  importation  of  such  persons  as  any  of  the 


CONSTITUTION   OF   THE   UNITED   STATES  701 

States  now  existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by 
the  Congress  prior  to  the  year  one  thousand  eight  hundred  and  eight,  but 
a  tax  or  duty  may  be  imposed  on  such  importation,  not  exceeding  ten 
dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  un- 
less when  in  cases  of  rebellion  or  invasion  the  public  safety  may  re- 
quire it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation,  or  other  direct  tax,  shall  be  laid,  unless  in  proportion 
to  the  census  or  enumeration  hereinbefore  directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 

No  preference  shall  be  given  by  any  regulation  of  commerce  or  revenue 
to  the  ports  of  one  State  over  those  of  another ;  nor  shall  vessels  bound 
to,  or  from,  one  State  be  obliged  to  enter,  clear,  or  pay  duties  in  an- 
other. 

No  money  shall  be  drawn  from  the  Treasury,  but  in  consequence  of 
appropriations  made  by  law  ;  and  a  regular  statement  and  account  of  the 
receipts  and  expenditures  of  all  public  money  shall  be  published  from 
time  to  time. 

■  No  title  of  nobility  shall  be  granted  by  the  United  States  ;  and  no  per- 
son holding  any  office  of  profit  or  trust  under  them  shall,  without  the  con- 
sent of  the  Congress,  accept  of  any  present,  emolument,  otlice,  or  title, 
of  any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Sec.  10.  No  state  shall  enter  into  any  treaty,  alliance,  or  confedera- 
tion ;  grant  letters  of  marque  and  reprisal ;  coin  money  ;  emit  bills  of 
credit ;  make  anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts  ;  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,  or  grant  any  title  of  nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be  absolutely  necessary 
for  executing  its  inspection  laws  ;  and  the  net  produce  of  all  duties  and 
imposts,  laid  by  any  State  on  imports  or  exports,  shall  be  for  the  use  of 
the  Treasury  of  the  United  States  ;  and  all  such  laws  shall  be  subject  to 
the  revision  and  control  of  the  CongTCSS. 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty  of  ton- 
nage, keep  troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign  power,  or  en- 
gage in  war,  unless  actually  invaded,  or  in  such  imminent  danger  as  will 
not  admit  of  delay. 

ARTICLE  II 

Section  1.  The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office  during  the  term  of 
four  years,  and  together  with  the  Vice-President,  chosen  for  the  same 
term,  be  elected  as  follows  : 

Each  State  shall  appoint,  in  such  manner  as  the  legislature  thereof  may 
direct,  a  number  of  electors,  equal  to  the  whole  number  of  Senators  and 
Representatives  to  which  the  State  may  be  entitled  in  the  Congress  ;  but 


702  APPENDIX 


no  Senator  or  Representative,  or  person  holding  an  office  of  trust  or  profit 
under  tlie  United  States,  shall  be  appointed  an  elector. 

[The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot 
for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabitant  of  the 
same  State  with  themselves.  And  they  shall  make  a  list  of  all  the  per- 
sons voted  for,  and  of  the  number  of  votes  for  each  ;  which  list  they  shall 
sign  and  certify,  and  transmit  sealed  to  the  seat  of  the  Government  of  the 
United  States  directed  to  the  President  of  the  Senate.  The  President  of 
the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Represen- 
tatives, open  all  the  certificates,  and  the  votes  shall  then  be  counted. 
The  person  having  the  greatest  number  of  votes  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  electors  appointed  ; 
and  if  there  be  more  than  one  who  h?ve  such  majority  and  have  an  equal 
number  of  votes,  then  the  House  of  Representatives  shall  immediately 
choose  by  ballot  one  of  them  for  President ;  and  if  no  person  have  a 
majority,  then  from  the  five  highest  on  the  list  the  said  House  shall  in  like 
manner  choose  the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  States,  the  representation  from  each  State  having  one 
vote  ;  a  qiiorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  In  every  case,  after  the  choice  of  the  President, 
the  person  having  the  greatest  number  of  votes  of  the  electors  shall  be 
the  Vice-President ;  but  if  there  should  remain  two  or  more  who  have 
equal  votes,  the  Senate  shall  choose  from  them,  by  ballot,  the  Vice- 
President. ]i 

The  Congress  may  determine  the  time  of  choosing  the  electors,  and 
the  day  on  which  they  shall  give  their  votes  ;  which  day  shall  be  the 
same  throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the  United 
States  at  the  time  of  the  adoption  of  this  Constitution,  shall  be  eligible  to 
the  ofiice  of  President ;  neither  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty-five  years,  and  been  four- 
teen years  a  resident  within  the  United  States. 

In  case  of  the  removal  of  the  President  from  oiSce,  or  of  his  death, 
resignation,  or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  Vice-President,  and  the  Congress 
may  by  law  provide  for  the  case  of  removal,  death,  resignation,  or  ina- 
bility, both  of  the  President  and  Vice-President,  declaring  what  officer 
shall  then  act  as  President,  and  .such  officer  shall  act  accordingly  until 
the  disability  be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  services  a  compen- 
sation, which  shall  neither  be  increased  nor  diminished  during  the  period 
for  which  he  shall  have  been  elected,  and  he  shall  not  receive  within  that 
period  any  other  emolument  from  the  L'nited  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the  follow- 
ing oath  or  affirmation : 

1  This  clause  in  brackets  has  been  superseded  by  the  Xllth  Amendment. 


I 


CONSTITUTION   OF   THE   UNITED   STATES  703 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute  the  office 
of  President  of  the  United  States,  and  will,  to  the  best  of  my  ability,  pre- 
serve, protect,  and  defend  the  Constitution  of  the  United  States." 

Sec.  2.  The  President  shall  be  commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States,  when 
called  into  the  actual  service  of  the  United  States  ;  he  may  require  the 
opinion,  in  writing,  of  the  principal  officer  in  each  of  the  executive  depart- 
ments, upon  any  subject  relating  to  the  duties  of  their  respective  offices, 
and  he  shall  have  power  to  grant  reprieves  and  pardons  for  offences 
against  the  United  States,  except  in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of  the  Senate, 
to  make  treaties,  provided  two-thirds  of  the  Senators  present  concur ;  and 
he  shall  nominate,  and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers  and  consuls,  judges  of 
the  Sujireme  Court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  law  ;  but  the  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers,  as  they  think  proper,  in  the  President  alone,  in 
the  courts  of  law,  or  in  the  heads  of  departments. 

The  President  shall  have  power  to  fill  up  all  vacancies  that  may  happen 
during  the  recess  of  the  Senate,  by  granting  commissions  which  shall 
expire  at  the  end  of  their  next  session. 

Sec.  3.  He  shall  from  time  to  time  give  to  the  Congress  information  of 
the  state  of  the  Union,  and  recommend  to  their  consideration  such  meas- 
ures as  he  shall  judge  necessary  and  expedient ;  he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  them,  and  in  case  of  disagree- 
ment between  them,  with  respect  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  shall  think  proper ;  he  shall  receive 
ambassadors  and  other  public  ministers  ;  he  shall  take  care  that  the  laws 
be  faithfully  executed,  and  shall  commission  all  the  officers  of  the  United 
States. 

Sec.  4.  The  President,  Vice-President,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment  for,  and  con- 
viction of,  treason,  bribery,  or  other  high  crimes  and  misdemeanours. 

ARTICLE   III 

Section  1 .  The  judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish.  The  judges,  both  of  the  Supreme  and 
inferior  courts,  shall  hold  their  offices  during  good  behaviour,  and  shall,  at 
stated  times,  receive  for  their  services  a  compensation,  which  shall  not  be 
diminished  during  their  continuance  in  office. 

Sec.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority  ;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls  ;  to  all  cases  of  admiralty 
and  maritime  jurisdiction ;  to  controversies  to  which  the  United  States 


704 


APPENDIX 


shall  be  a  party  ;  to  controversies  between  two  or  more  States  ;  between 
a  State  and  citizens  of  another  State  ;  between  citizens  of  different  States 
between  citizens  of  the  same  State  claiming  lands  under  grants  of  dif- 
ferent States,  and  between  a  State,  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects. 

In  all  cases  a.ffecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  the  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such 
exceptions,  and  under  such  regulations  as  the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury  ;  and  such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall 
have  been  conunitted ;  but  when  not  committed  within  any  State,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by  law  have  directed. 

Sec.  3.  Treason  against  the  United  States  shall  consist  only  in  levying 
war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort.  No  person  shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

The  Congi-ess  shall  have  power  to  declare  the  punishment  of  treason, 
but  no  attainder  of  treason  shall  work  corruption  of  blood,  or  forfeiture 
except  during  the  life  of  the  person  attainted. 

ARTICLE   IV 

Section  1.  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  State.  And 
the  Congress  may  by  general  laws  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

Sec.  2.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice  and  be  found  in  another  State,  shall,  on  demand  of 
the  executive  authority  of  the  State  from  which  he  fled,  be  delivered  up, 
to  be  removed  to  the  State  having  jurisdiction  of  the  crime. 

No  person  held  to  service  or  labour  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or  regu- 
lation therein,  be  discharged  from  such  service  or  labour,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  service  or  labour  may  be 
due. 

Sec.  3.  New  States  may  be  admitted  by  the  Congress  into  this  Union ; 
but  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction  of  any 
other  State  ;  nor  any  State  be  formed  by  the  junction  of  two  or  more 
States,  or  parts  of  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned  as  well  as  of  the  Congress. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belonging  to  the 
United  States ;  and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  prejudice  any  claims  of  the  United  States,  or  of  any  particular  State. 


CONSTITUTION   OF   THE   UNITED   STATES  705 


Sec.  4.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each  of  them 
against  invasion  ;  and  on  application  of  the  legislature,  or  of  the  execu- 
tive (when  the  legislature  cannot  be  convened),  against  domestic  violence. 

ARTICLE    V 

The  Congress,  whenever  two-thirds  of  both  houses  shall  deem  it  neces- 
sary, shall  propose  amendments  to  this  Constitution,  or  on  the  applica- 
tion of  the  legislatures  of  two-thirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either  case,  shall 
be  valid,  to  all  intents  and  purposes,  as  part  of  this  Constitution,  when 
ratified  by  the  legislatures  of  three-fourths  of  the  several  States,  or  by  con- 
ventions in  three-fourths  thereof,  as  the  one  or  the  other  mode  of  ratifica- 
tion may  be  proposed  by  the  Congress  ;  provided  that  no  amendment 
which  may  be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article  ;  and  that  no  State,  without  its  consent,  shall 
be  deprived  of  its  equal  sulfrage  in  the  Senate. 

ARTICLE   VI 

All  debts  contracted  and  engagements  entered  into,  before  the  adop- 
tion of  this  Constitution,  shall  be  as  valid  against  the  United  States  under 
this  Constitution  as  under  the  Confederation. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land  ;  and  the  judges  in  every  State  shall  be  bound  thereby, 
any  thing  in  the  constitution  or  laws  of  any  State  to  the  contrary  notwith- 
standing. 

The  Senators  and  Representatives  before  mentioned,  and  the  members 
of  the  several  State  legislatures,  and  all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  States,  shall  be  bound  by 
oath  or  affirmation  to  support  this  Constitution  ;  but  no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States. 

ARTICLE   VII 

The  ratification  of  the  conventions  of  nine  States  shall  be  sufficient 
for  the  establishment  of  this  Constitution  between  the  States  so  ratifying 
the  same. 

Done  in  Convention  by  the  unanimous  consent  of  the  States  present,^ 

1  Rhode  Island  was  not  represented.  Several  of  the  delegates  had  left  the 
Convention  before  it  coneladed  its  labours,  and  some  others  who  remained 
refused  to  sign.    In  all,  65  delegates  had  been  appointed,  55  attended,  39  signed. 

The  first  ratification  was  that  of  Delaware,  Dec.  7,  1787 ;  the  ninth  (bring- 
ing the  Constitution  into  force)  that  of  New  Hampshire,  June  21,1788;  the 
last,  that  of  Rhode  Island,  May  29,  1790. 

VOL.  I  2  Z 


706  APPENDIX 


the  Seventeenth  day  of  September,  in  the  year  of  our  Lord  1787,  and  of 
the  Independence  of  the  United  States  of  America  the  Twelfth. 
In  Witness  whereof  we  have  hereunto  subscribed  our  names. 

Go  Washington, 
Presidt.  and  Deputy  from  Virginia. 

New  Hampshire  —  John  Langdon,  Nicholas  Gilman.     Massaclmsetts 

—  Nathaniel  Gorham,  Rufus  King.  Connecticut  —  Wm.  Saml.  John- 
son, Roger  Sherman.     New   York  —  Alexander  Hamilton.     New  Jersey 

—  Wil.  Livingston,  Wm.  Paterson,  David  Brearley,  Jona.  Dayton. 
Pennsylvania  —  B.  Franklin,  Thos.  Fitzsimons,  Thomas  Mifflin,  Jared 
Ingersoll,  Robt.  Morris,  James  Wilson,  Geo.  Clyraer,  Gouv.  Morris. 
Delaware  —  Geo.  Read,  Richai-d  Bassett,  Gunning  Bedford,  Jun.,  Jaco. 
Broom,  John  Dickinson.  Maryland  —  James  M'Uenry,  Dan.  Carroll, 
Dan.  Jenifer,  of  St.  Thomas.  Virginia  —  John  Blair,  James  Madison, 
Jun.  North  Carolina  —  Wm.  Blount,  Hugh  Williamson,  Rich'd  Dobbs 
Spaight.  South  Carolina  —  J.  Rutledge,  Charles  Pinckney,  Charles 
Cotesworth  Pinckney,  Pierce  Butler.  Georgia  —  William  Few,  Abr. 
Baldwin. 

Attest:  William  Jackson,  Secretary 


Articles  in  addition  to,  and  amendment  of,  the  Constitution  of  the  United 
States  of  America,  jiroposed  by  Congress,  and  ratified  by  the  Legis- 
latures of  the  several  States,  pursuant  to  the  fifth  Article  of  the  origi- 
nal Constitution. 

ARTICLE   II 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof  ;  or  abridging  the  freedom  of  speech 
or  of  the  press  ;  or  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances. 

ARTICLE   II 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free  state, 
the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  infringed. 

ARTICLE   III 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house,  without 
the  consent  of  the  owner,  nor  in  the  time  of  war,  but  in  a  manner  to  be    i\ 
prescribed  by  law. 

ARTICLE   IV 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be  vio- 

1  Amendments  I-X  inclusive  were  proposed  by  Congress  to  the  Legislatures 
of  the  States,  Sept.  25,  1789,  and  ratified  178'J-91. 


CONSTITUTION   OF   THE    UNITED    STATES  707 


lated,  and  no  warrants  shall  issue,  but  upon  probable  cause,  supported  by 
oath  or  affirmation,  and  particularly  describing  the  place  to  be  searched, 
and  the  persons  or  things  to  be  seized. 


ARTICLE   V 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces,  or  in  the  militia,  when  in  actual 
service  in  time  of  war  or  public  danger ;  nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall 
be  compelled  in  any  criminal  case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law  ;  nor 
shall  private  property  be  taken  for  public  use,  without  just  compensation. 


ARTICLE    VI 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation  ;  to  be  confronted  with  the  witnesses  against 
him ;  to  have  compulsory  process  for  obtaining  witnesses  in  his  favour, 
and  to  have  the  assistance  of  counsel  for  his  defence. 


ARTICLE   VII 

In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact 
tried  by  a  jury  shall  be  otherwise  re-examined  in  any  court  of  the  United 
States  than  according  to  the  rules  of  the  common  law. 

ARTICLE   VIII 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted. 

ARTICLE    IX 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE   X 

The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively,  or 
to  the  people. 


ro8  APPENDIX 


ARTICLE   XII 

The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  State. 

ARTICLE   XII 2 

The  electors  shall  meet  in  their  respective  States,  and  vote  by  ballot 
for  President  and  Vice-President,  one  of  whom  at  least  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves  ;  they  shall  name  in  their 
ballots  the  person  voted  for  as  Presiaent,  and  in  distinct  ballots  the  per- 
son voted  for  as  Vice-President,  and  they  shall  make  distinct  lists  of  all 
persons  voted  for  as  President,  and  of  all  persons  voted  for  as  Vice-Presi- 
dent, and  of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate ;  —  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall  then  be  counted  ;  —  The  per- 
son having  the  greatest  number  of  votes  for  President  shall  be  the  Presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed ;  and  if  no  person  have  such  majority,  then  from  the  persons 
having  the  highest  numbers  not  exceeding  three  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  I'resident.  But  in  choosing  the  President,  the  votes  shall 
be  taken  by  States,  the  representation  from  each  State  having  one  vote  ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  members  from 
two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be  neces- 
sary to  a  choice.  And  if  the  House  of  Representatives  shall  not  choose  a 
President  whenever  the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  Vice-President  shall  act 
as  President,  as  in  the  case  of  the  death  or  other  constitutional  disability 
of  the  President. 

The  person  having  the  greatest  number  of  votes  as  Vice-President  shall 
be  the  Vice-President,  if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed,  and  if  no  person  have  a  majority,  then  from  the  two 
highest  numbers  on  the  list  the  Senate  shall  choose  the  Vice-President ; 
a  quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number 
of  Senators,  and  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States. 

1  Amendt.  XI  was  proposed  by  Congress  Sept.  5,  1794,  and  declared  to  have 
been  ratified  by  the  legislatures  of  three-fourths  of  the  States,  Jan.  8,  1798. 

2  Amendt.  XII  was  proposed  by  Congress  Dec.  12, 1803,  and  declared  to  have 
been  ratified  Sept.  25,  1804. 


CONSTITUTION  OF  THE  UNITED   STATES  709 


ARTICLE  XIII 1 

Section  1.  Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their  juris- 
diction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

ARTICLE  XIV  2 

Section  1.  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States  ;  nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws. 

Sec.  2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for  President  and  Vice- 
President  of  the  United  States,  Representatives  in  Congress,  the  executive 
and  judicial  officers  of  a  State,  or  the  members  of  the  legislature  thereof, 
is  denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion,  or  other  crime,  the  basis  of  representa- 
tion therein  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

Sec.  3.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or  * 
elector  of  President  and  Vice-President,  or  hold  any  office,  civil  or  mili- 
tary, under  the  United  States,  or  under  any  State,  who,  having  previously 
taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  legislature,  or  as  an  executive  or  judi- 
cial officer  of  any  State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against  the  same,  or  given 
aid  or  comfort  to  the  enemies  thereof.  But  Congress  may,  by  a  vote  of 
two-thirds  of  each  House,  remove  such  disability. 

Sec.  4.  The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties  for 
services  m  suppressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the 

1  Amendt.  XIII  was  proposed  by  Congress  Feb.  1,  1865,  and  declared  to 
have  been  ratified  by  27  of  the  ;56  States,  Dec.  18,  18()5. 

2  Amendt.  XIV  was  proposed  by  Congress  June  l(j,  180(5,  and  declared  to 
have  been  ratified  by  30  of  the  36  States,  July  28, 1808. 


710  APPENDIX 


United  States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave ; 
but  all  such  debts,  obligations,  and  claims  shall  be  held  illegal  and  void. 
Sec.  5.  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 


ARTICLE  XVI 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States  or  by  any  State  on  account 
of  race,  colour,  or  previous  condition  of  servitude. 

Sec.  2.  The  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 

1  Amendt.  XV  was  proposed  by  Congress  Feb.  20, 1869,  and  declared  to  have 
been  ratified  by  29  of  the  37  States,  March  30,  1870. 


EXTRACTS   FROM  THE   CONSTITUTION   OF  THE 
STATE    OF   CALIFORNIA  1 


Adopted  in  Convention  at  Sacramento,  March  3,  a.d.  1879  ;  submitted  to 
and  ratified  by  the  People,  May  7,  1879. 


PREAMBLE   AND   DECLARATION   OF   RIGHTS 

PREAMBLE 

We,  the  people  of  the  State  of  California,  grateful  to  Almighty  God  for 
our  freedom,  in  order  to  secure  and  perpetuate  its  blessings,  do  establish 
this  Constitution. 

ARTICLE    I 

DECLARATION    OF    RIGHTS 

Section  1.  All  men  are  by  nature  free  and  independent,  and  have 
certain  inalienable  rights,  among  which  are  those  of  enjoying  and  de- 
fending life  and  liberty  ;  acquiring,  possessing,  and  protecting  property  ; 
and  pursuing  and  obtaining  safety  and  happiness. 

Sec.  2.  All  political  power  is  inherent  in  the  people.  Government  is 
instituted  for  the  protection,  security,  and  benefit  of  the  people,  and  they 
have  the  right  to  alter  or  reform  the  same  whenever  the  public  good  may 
require  it. 

Sec.  3.  The  State  of  California  is  an  inseparable  part  of  the  American 
Union,  and  the  Constitution  of  the  United  States  is  the  supreme  law  of 
the  land. 

Sec  4.  The  free  exercise  and  enjoyment  of  religious  profession  and 
worship,  without  discrimination  or  preference,  shall  for  ever  be  guaranteed 
in  this  State  ;  and  no  person  shall  be  rendered  incompetent  to  be  a  wit- 
ness or  juror  on  account  of  his  opinions  on  matters  of  religious  belief  ;  but 
the  liberty  of  conscience  hereby  secured  shall  not  be  so  construed  as  to 
excuse  acts  of  licentiousness,  or  justify  practices  inconsistent  with  the 
peace  or  the  safety  of  the  State. 

1 1  take  these  extracts  (being  unable  to  find  space  for  the  whole  document) 
from  the  official  edition  of  1887,  which  contains  a  few  amendments  made  since 
1879. 

711 


712  APPENDIX 

Skc.  5.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended unless  when,  in  case  of  rebellion  or  invasion,  the  public  safety 
may  require  the  suspension. 

Sec.  6.  All  persons  shall  be  bailable  by  sufficient  sureties  unless  for 
capital  offences  when  the  proof  is  evident  or  the  presumption  great.  Ex- 
cessive bail  shall  not  be  required,  nor  excessive  fines  imposed  ;  nor  shall 
cruel  or  unusual  punishment  be  inflicted.  Witnesses  shall  not  be  unrea- 
sonably detained,  nor  confined  in  any  room  where  criminals  are  actually 
imprisoned. 

Sec.  7.  The  right  of  trial  by  jury  shall  be  secured  to  all,  and  remain 
inviolate  ;  but  in  civil  actions  three-fourths  of  the  jury  may  render  a  ver- 
dict. A  trial  by  jury  may  be  waived  in  all  criminal  cases,  not  amounting 
to  felony,  by  the  consent  of  both  parties,  expressed  in  open  Court,  and  in 
civil  actions  by  the  consent  of  the  parties,  signified  in  such  manner  as  may 
be  prescribed  by  law.  In  civil  actions,  and  cases  of  misdemeanour,  the  jury 
may  consist  of  twelve,  or  of  any  number  less  than  twelve  upon  which  the 
parties  may  agree  in  open  Court. 

Sec.  8.  Offences  heretofore  required  to  be  prosecuted  by  indictment 
shall  be  prosecuted  by  information,  after  examination  and  commitment 
by  a  magistrate,  or  by  indictment,  with  or  without  such  examination  and 
commitment,  as  may  be  prescribed  by  law.  A  grand  jury  shall  be  drawn 
and  summoned  at  least  once  a  year  in  each  county. 

Sec.  9.  Every  citizen  may  freely  speak,  write,  and  publish  his  senti- 
ments on  all  subjects,  being  responsible  for  the  abuse  of  that  right ;  and 
no  law  shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech  or  of 
the  press.  In  all  criminal  prosecutions  for  libels,  the  truth  may  be  given 
in  evidence  to  the  jury  ;  and  if  it  shall  appear  to  the  jury  that  the  matter 
charged  as  libellous  is  true,  and  was  published  with  good  motives,  and  for 
justifiable  ends,  the  party  shall  be  acquitted  ;  and  the  jury  shall  have  the 
right  to  determine  the  law  and  the  fact.  Indictments  found,  or  informa- 
tions laid,  for  publication  in  newspapers,  shall  be  tried  in  the  county  where 
such  newspapers  have  their  publication  office,  or  in  the  county  where  the 
party  alleged  to  be  libelled  resided  at  the  time  of  the  alleged  publication, 
unless  the  place  of  trial  shall  be  changed  for  good  cause. 

Sec.  10.  The  people  shall  have  the  right  to  freely  assemble  together  to 
consult  for  the  common  good,  to  instruct  their  representatives,  and  to 
petition  the  Legislature  for  redress  of  grievances. 

Sec.  11.    All  laws  of  a  general  nature  shall  have  a  uniform  operation. 

Sec.  12.  The  military  shall  be  subordinate  to  the  civil  power.  No 
standing  army  shall  be  kept  up  by  this  State  in  time  of  peace,  and  no 
soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without  the  con- 
sent of  the  owner ;  nor  in  time  of  war,  except  in  the  manner  prescribed 
by  law. 

Sec.  13.  In  criminal  prosecutions,  in  any  court  whatever,  the  party 
accused  shall  have  the  right  to  a  speedy  and  public  trial ;  to  have  the 
process  of  the  Court  to  compel  the  attendance  of  witnesses  in  his  behalf, 
and  to  appear  and  defend,  in  person  and  with  counsel.  No  person  shall 
be  twice  put  in  jeopardy  for  the  same  offence  ;  nor  be  compelled,  in  any 


THE   CONSTITUTION   OF   CALIFORNIA  713 


criminal  case,  to  be  a  witness  against  himself  ;  nor  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law.  The  Legislature  shall 
have  power  to  provide  for  the  taking,  in  the  presence  of  the  party  accused 
and  his  counsel,  of  depositions  of  witnesses  in  criminal  cases,  other  than 
cases  of  homicide,  when  there  is  reason  to  believe  that  the  witness,  from 
inability  or  other  causes,  will  not  attend  at  the  trial. 

Sec.  14.  Private  property  shall  not  be  taken  or  damaged  for  public  use 
without  just  compensation  having  been  first  made  to,  or  paid  into  Court 
for,  the  owner,  and  no  right  of  way  shall  be  appropriated  to  the  use  of 
any  corporation  other  than  municipal  until  full  compensation  therefor  be 
first  made  in  money  or  ascertained  and  paid  into  Court  for  the  owner, 
irrespective  of  any  benefit  from  any  improvement  proposed  by  such  cor- 
poration, which  compensation  shall  be  ascertained  by  a  jury,  unless  a  jury 
be  waived,  as  in  other  civil  cases  in  a  Court  of  record,  as  shall  be  pre- 
scribed by  law. 

Sec.  15.  No  person  shall  be  imprisoned  for  debt  in  any  civil  action,  on 
mesne  or  final  process,  unless  in  case  of  fraud,  nor  in  civil  actions  for 
torts,  except  in  cases  of  wilful  injury  to  person  or  property  ;  and  no  per- 
son shall  be  imprisoned  for  a  militia  fine  in  time  of  peace. 

Sec.  16.  No  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligations  of  contracts,  shall  ever  be  passed. 

Sec.  17.  Foreigners  of  the  white  race  or  of  African  descent,  eligible  to 
become  citizens  of  the  United  States  under  the  naturalization  laws  there- 
of, while  bona  fide,  residents  of  this  State,  shall  have  the  same  rights  in 
respect  to  the  acquisition,  possession,  enjoyment,  transmission,  and  in- 
heritance of  property  as  native  born  citizens. 

Sec.  18.  Neither  slavery  nor  involuntary  servitude,  unless  for  the  pun- 
ishment of  crime,  shall  ever  be  tolerated  in  this  State. 

Sec.  19.  The  right  of  the  people  to  be  secured  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  seizures  and  searches,  shall  not 
be  violated  ;  and  no  warrant  shall  issue,  but  on  probable  cause,  supported 
by  oath  or  affirmation,  particularly  describing  the  place  to  be  searched 
and  the  persons  and  things  to  be  seized. 

Sec  20.  Treason  against  the  State  shall  consist  only  in  levying  war 
against  it,  adhering  to  its  enemies,  or  giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason  unless  on  the  evidence  of  two  wit- 
nesses to  the  same  overt  act,  or  confession  in  open  Court. 

Sec.  21.  No  special  privileges  or  immunities  shall  ever  be  granted 
which  may  not  be  altered,  revoked,  or  repealed  by  the  Legislature,  nor 
shall  any  citizen,  or  class  of  citizens,  be  gi-anted  privileges  or  immunities 
which,  upon  the  same  terms,  shall  not  be  granted  to  all  citizens. 

Sec.  22.  The  provisions  of  this  Constitution  are  mandatory  and  pro- 
hibitory, unless  by  express  words  they  are  declared  to  be  otherwise. 

Sec  23.  This  enumeration  of  rights  shall  not  be  construed  to  impair 
or  deny  others  retained  by  the  people. 

Sec  24.  No  property  (lualification  shall  ever  be  required  for  any  person 
to  vote  or  hold  office. 


714  APPENDIX 


ARTICLE   IV 

LEGISLATIVE    DEPARTMENT 

Sec.  25.  The  Legislature  shall  not  pass  local  or  special  laws  in  any  of 
the  following  enumerated  cases,  that  is  to  say  :  — 

First  —  Eegulating  the  jurisdiction  and  duties  of  Justices  of  the  Peace, 
Police  Judges,  and  of  Constables. 

Second  —  For  the  punishment  of  crimes  and  misdemeanours. 
.    Third  —  Regulating  the  practice  of  courts  of  justice. 

Fourth  —  Providing  for  changing  the  venue  in  civil  or  criminal  actions. 

Fifth  —  Granting  divorces. 

Sixth  —  Changing  the  names  of  persons  or  places. 

Seventh  —  Authorizing  the  laying  out,  opening,  altering,  maintaining, 
or  vacating  roads,  highways,  streets,  alleys,  town  plots,  parks,  cemeteries, 
graveyards,  or  public  grounds  not  owned  by  the  State. 

Eighth  —  Summoning  and  impanelling  grand  and  petit  juries,  and  pro- 
viding for  their  compensation. 

Ninth  —  Regulating  county  and  township  business,  or  the  election  of 
county  or  township  officers. 

Tenth  —  For  the  assessment  or  collection  of  taxes. 

Eleventh — Providing  for  conducting  elections,  or  designating  the  places 
of  voting,  except  on  the  organization  of  new  counties. 

Twelfth  —  Affecting  estates  of  deceased  persons,  minors,  or  other  per- 
sons under  legal  disabilities. 

Thirteenth  —  Extending  the  time  for  the  collection  of  taxes. 

Fourteenth  —  Giving  effect  to  invalid  deeds,  wills,  or  other  instru- 
ments. 

Fifteenth  —  Refmiding  money  paid  into  the  State  Treasury. 

Sixteenth  —  Releasing,  or  extinguishing,  in  whole  or  in  part,  the  in- 
debtedness, liability,  or  obligation  of  any  corporation  or  person  to  this 
State,  or  to  any  municipal  corporation  therein. 

Seventeenth  —  Declaring  any  person  of  age,  or  authorizing  any  minor 
to  sell,  lease,  or  encumber  his  or  her  property. 

Eighteenth  —  Legalizing,  except  as  against  the  State,  the  unauthorized 
or  invalid  act  of  any  officer. 

Nineteenth  —  Granting  to  any  corporation,  association,  or  individual 
any  special  or  exclusive  right,  privilege,  or  immunity. 

Twentieth  —  Exempting  property  from  taxation. 

Twenty-first  —  Changing  county  seats. 

Twenty-second — Restoring  to  citizenship  persons  convicted  of  infa- 
mous crimes. 

Twenty-third  —  Regulating  the  rate  of  interest  on  money. 

Twenty-fourth  —  Authorizing  the  creation,  extension,  or  impairing  of 
liens. 

Twenty-fifth  —  Chartering  or  licensing  ferries,  bridges,  or  roads. 

T'wenty-sixth  —  Remitting  fines,  penalties,  or  forfeitures. 


THE   CONSTITUTION  OF  CALIFORNIA  715 

Twenty- seventh  —  Providing  for  the  management  of  common  schools. 

Twenty-eir/hth —  Creating  oflftces,  or  prescribing  the  powers  and  duties 
of  olficers  in  counties,  cities,  cities  and  counties,  township,  election,  or 
school  districts. 

Twenty-ninth  —  Affecting  the  fees  or  salary  of  any  officer. 

Thirtieth  —  Changing  the  law  of  descent  or  succession. 

Thirty-first  —  Authorizing  the  adoption  or  legitimation  of  children. 

Thirty-second  —  For  limitation  of  civil  or  criminal  actions. 

Th irty-third  —  In  all  other  cases  where  a  general  law  can  be  made 
applicable. 

Sec.  26.  The  Legislature  shall  have  no  power  to  authorize  lotteries 
or  gift  enterprises  for  any  purpose,  and  shall  pass  laws  to  prohibit  the 
sale  in  this  State  of  lottery  or  gift  enterprise  tickets,  or  tickets  in  any 
scheme  in  the  nature  of  a  lottery.  The  Legislature  shall  pass  laws  to 
regulate  or  prohibit  the  buying  and  selling  of  the  shares  of  the  capital 
stock  of  corporations  in  any  stock  board,  stock  exchange,  or  stock  market 
imder  the  control  of  any  association.  All  contracts  for  the  sale  of 
shares  of  the  capital  stock  of  any  corporation  or  association,  on  margin, 
or  to  be  delivered  at  a  future  day,  shall  be  void,  and  any  money  paid  on 
such  contracts  may  be  recovered  by  the  party  paying  it  by  suit  in  any 
Court  of  competent  jurisdiction. 

Sec.  35.  Any  person  who  seeks  to  influence  the  vote  of  a  member 
of  the  Legislature  by  bribery,  promise  of  reward,  intimidation,  or  any 
other  dishonest  means,  shall  be  guilty  of  lobbying,  which  is  hereby  de- 
clared a  felony ;  and  it  shall  be  the  duty  of  the  Legislature  to  provide, 
by  law,  for  the  punishment  of  this  crime.  Any  member  of  the  Legis- 
lature, who  shall  be  influenced  in  his  vote  or  action  upon  any  matter 
pending  before  the  Legislature  by  any  reward,  or  promise  of  future 
reward,  shall  be  deemed  guilty  of  a  felony,  and  \ipon  conviction  thereof, 
m  addition  to  such  punishment  as  may  be  provided  by  law,  shall  be 
disfranchised  and  for  ever  disqualified  from  holding  any  office  of  public 
trust.  Any  person  may  be  compelled  to  testify  in  any  lawful  investiga- 
tion or  judicial  proceeding  against  any  person  who  may  be  charged  with 
having  committed  tlie  offence  of  bribery  or  corrupt  solicitation,  or  with 
having  been  influenced  in  his  vote  or  action,  as  a  member  of  the  Legis- 
lature, by  reward,  or  promise  of  future  reward,  and  shall  not  be  per- 
mitted to  withhold  his  testimony  upon  the  ground  that  it  may  criminate 
himself,  or  subject  him  to  public  infamy  ;  but  such  testimony  shall  not 
afterwards  be  used  against  him  in  any  judicial  proceeding,  except  for 
perjury  in  giving  such  testimony. 

AETICLE   XII 

CORPORATIONS 

Section  1.  Corporations  may  be  formed  under  general  laws,  but  shall 
not  be  created  by  special  Act.  All  laws  now  in  force  in  this  State  con- 
cerning corporations,  and  all  laws  that  may  be  hereafter  passed  pursuant 
to  this  section,  may  be  altered  from  time  to  time  or  repealed. 


716  APPENDIX 


Sec.  2.  Dues  from  corporations  shall  be  secured  by  such  individual 
liability  of  the  corporators  and  other  means  as  may  be  prescribed  by  law. 

Sec.  3.  Each  stockholder  of  a  corporation,  or  joint-stock  association, 
shall  be  individually  and  personally  liable  for  such  proportion  of  all  its 
debts  and  liabilities  contracted  or  incurred,  during  the  time  he  was  a  stock- 
holder, as  the  amount  of  stock  or  shares  owned  by  him  bears  to  the  whole 
of  the  subscribed  capital  stock  or  shares  of  the  corporation  or  association. 
The  directors  or  trustees  of  corporations  and  joint-stock  associations  shall 
be  jointly  and  severally  liable  to  the  creditors  and  stockholders  for  all 
moneys  embezzled  or  misappropriated  by  the  officers  of  such  corporation 
or  joint-stock  association,  during  the  term  of  such  director  or  trustee. 

Sec.  4.  The  term  corporations,  as  used  in  this  article,  shall  be  construed 
to  include  all  associations  and  joint-stock  companies  having  any  of  the 
powers  or  privileges  of  corporations  not  possessed  by  individuals  or  part- 
nerships, and  all  corporations  shall  have  the  right  to  sue  and  shall  be  sub- 
ject to  be  sued,  in  all  Courts,  in  like  cases  as  natural  persons. 

Sec.  5.  The  Legislature  shall  have  no  power  to  pass  any  Act  grant- 
ing any  charter  for  banking  purposes,  but  corporations  or  associations 
may  be  formed  for  such  purposes  under  general  laws.  No  corporation, 
association,  or  individual  shall  issue  or  put  into  circulation,  as  money, 
anything  but  the  lawful  money  of  the  United  States. 

Sec.  6.  All  existing  charters,  grants,  franchises,  special  or  exclusive 
privileges,  under  which  an  actual  and  bona  fide  organization  shall  not  have 
taken  place,  and  business  beeu  commenced  in  good  faith,  at  the  time  of 
the  adoption  of  this  Constitution,  shall  thereafter  have  no  validity. 

Sec.  7.  The  Legislature  shall  not  extend  any  franchise  or  charter,  nor 
remit  the  forfeiture  of  any  franchise  or  charter,  of  any  corporation  now 
existing,  or  which  shall  hereafter  exist  under  the  laws  of  this  State. 

Sec  8.  The  exercise  of  the  right  of  eminent  domain  shall  never  be  so 
abridged  or  construed  as  to  prevent  the  Legislature  from  taking  the  prop- 
erty and  franchises  of  incorporated  companies  and  subjecting  them  to 
public  use  the  same  as  the  property  of  individuals,  and  the  exercise  of  the 
police  power  of  the  State  .shall  never  be  so  abridged  or  construed  as  to 
permit  corporations  to  conduct  their  business  in  such  manner  as  to  infringe 
the  rights  of  individuals  or  the  general  well-being  of  the  State. 

Sec  9.  No  corporation  shall  engage  in  any  business  other  than  that 
expressly  authorized  in  its  charter,  or  the  law  under  which  it  may  have 
been  or  may  hereafter  be  organized  ;  nor  shall  it  hold  for  a  longer  period 
than  five  years  any  real  estate  except  such  as  may  be  necessary  for  carry- 
ing on  its  business. 

Sec.  10.  The  Legislature  shall  not  pass  any  laws  permitting  the  leas- 
ing or  alienation  of  any  franchise,  so  as  to  relieve  the  franchise  or  prop- 
erty held  thereunder  from  the  liabilities  of  the  lessor  or  grantor,  lessee  or 
grantee,  contracted  or  incurred  in  the  operation,  use,  or  enjoyment  of 
such  franchise,  or  any  of  its  privileges. 

Sec  11.  No  corporation  shall  issue  stock  or  bonds,  except  for  money 
paid,  labour  done,  or  property  actually  received,  and  all  fictitious  increase 
of  stock  or  indebtedness  shall  be  void.     The  stock  and  bonded  indebted- 


THE    CONSTITUTION   OF   CALIFORNIA  717 


ness  of  corporations  shall  not  be  increased  except  in  pursuance  of  general 
law,  nor  without  the  consent  of  the  persons  holding  the  larger  amount  in 
value  of  the  stock,  at  a  meeting  called  for  that  purpose,  giving  sixtj^  days 
public  notice,  as  may  be  provided  by  law. 

Sec.  12.  In  all  elections  for  directors  or  managers  of  corporations  every 
stockholder  shall  have  the  right  to  vote,  in  person  or  by  proxy,  the  num- 
ber of  shares  of  stock  owned  by  him,  for  as  many  persons  as  there  are 
directors  or  managers  to  be  elected,  or  to  cumulate  said  shares  and  "ive 
one  candidate  as  many  votes  as  the  number  of  directors  multiplied  by  the 
number  of  his  shares  of  stock  shall  equal,  or  to  distribute  them,  on  the 
same  principle,  among  as  many  candidates  as  he  maj-  think  fit ;  and  such 
dii'ectors  or  managers  shall  not  be  elected  in  any  other  manner,  except 
that  members  of  co-operative  societies  formed  for  agricultural,  mercantile, 
and  manufacturing  purposes  may  vote  on  all  questions  affecting  such 
societies  in  manner  prescribed  by  law. 

Sec.  13.  The  State  shall  not  in  any  manner  loan  its  credit,  nor  shall 
it  subscribe  to  or  be  interested  in  the  stock  of  any  company,  association,  or 
corporation. 

Sec.  14.  Every  corporation,  other  than  religious,  educational,  or  benev- 
olent, organized  or  doing  business  in  this  State,  shall  have  and  maintain  an 
office  or  place  in  this  State  for  the  transaction  of  its  business,  where 
transfers  of  stock  shall  be  made,  and  in  which  shall  be  kept  for  inspec- 
tion, by  every  person  having  an  interest  therein,  and  legislative  commit- 
tees, books  in  which  shall  be  recorded  the  amount  of  capital  stock  sub- 
scribed, and  by  whom  ;  the  names  of  the  owners  of  its  stock,  and  the 
amounts  owned  by  them  respectively  ;  the  amount  of  stock  paid  in,  and  by 
whom  ;  the  transfers  of  stock  ;  the  amount  of  its  assets  and  liabilities, 
and  the  names  and  place  of  residence  of  its  officers. 

Sec.  15.  No  corporation  organized  outside  the  limits  of  this  State  shall 
be  allowed  to  transact  business  within  this  State  on  more  favourable  con- 
ditions than  are  prescribed  by  law  to  similar  corporations  organized  under 
the  laws  of  this  State. 

Sec.  16.  A  corporation  or  association  may  be  sued  in  the  county  where 
the  contract  is  made  or  is  to  be  performed,  or  where  the  obligation  or 
liability  arises,  or  the  breach  occurs  ;  or  in  the  county  where  the  principal 
place  of  business  of  such  corporation  is  situated,  subject  to  the  power  of 
the  Court  to  change  the  place  of  trial  as  in  other  cases. 

Sec.  17.  All  railroad,  canal,  and  other  transportation  companies  are 
declared  to  be  common  carriers,  and  subject  to  legislative  control.  Any 
association  or  corporation,  organized  for  the  purpose,  under  the  laws  of 
this  State,  shall  have  the  right  to  connect  at  the  State  line  with  railroads 
of  other  States.  Every  railroad  company  shall  have  the  right  with  its 
road  to  intersect,  connect  with,  or  cross  any  other  railroad,  and  shall 
receive  and  transport  each  the  other's  passengers,  tonnage,  and  cars, 
without  delay  or  discrimination. 

Sec.  18.  No  president,  director,  officer,  agent,  or  employe  of  any  rail- 
road or  canal  company  shall  be  interested,  directly  or  indirectly,  in  the 
furnishing  of  material  or  supplies  to  such  company,  nor  in  the  business 


718  APPENDIX 


of  transportation  as  a  common  carrier  of  freight  or  passengers  over  the 
worlds  owed,  leased,  controlled,  or  worked  by  such  company,  except  such 
interest  in  the  business  of  transportation  as  lawfully  flows  from  the  owner- 
ship of  stock  therein. 

Sec.  19.  No  railroad  or  other  transportation  company  shall  grant  free 
passes,  or  passes  or  tickets  at  a  discount,  to  any  person  holding  any  office 
of  honour,  trust,  or  profit  in  this  State  ;  and  the  acceptance  of  any  such 
pass  or  ticket  by  a  member  of  the  Legislature  or  any  public  officer,  other 
than  Railroad  Commissioner,  shall  work  a  forfeiture  of  his  office. 

Sec.  20.  No  railroad  company  or  other  common  carrier  shall  combine 
or  make  any  contract  with  the  owners  of  any  vessel  that  leaves  port  or 
makes  port  in  this  State,  or  with  any  common  carrier,  by  which  combina- 
tion or  contract  the  earnings  of  one  doing  the  carrying  are  to  be  shared 
by  the  other  not  doing  the  carrying.  And  whenever  a  railroad  corpora- 
tion shall,  for  the  purpose  of  competing  with  any  other  common  carrier, 
lower  its  rates  for  transportation  of  passengers  or  freight  from  one  point 
to  another,  such  reduced  rates  shall  not  be  again  raised  or  increased  from 
such  standard  without  the  consent  of  the  governmental  authority  in  which 
shall  be  vested  the  power  to  regulate  fares  and  freights. 

Sec.  21.  No  discrimination  in  charges  or  facilities  for  transportation 
shall  be  made  by  any  railroad  or  other  transportation  company  between 
places  or  persons,  or  in  the  facilities  for  the  transportation  of  the  same 
classes  of  freight  or  passengers  within  this  State,  or  coming  from  or  going 
to  any  other  State.  Persons  and  property  transported  over  any  railroad, 
or  by  any  other  transportation  company  or  individual,  shall  be  delivered 
at  any  station,  landing,  or  port,  at  charges  not  exceeding  the  charges  for 
the  transportation  of  persons  and  property  of  the  same  class,  in  the  same 
direction,  to  any  more  distant  station,  port,  or  landing.  Excursion  and 
commutation  tickets  may  be  issued  at  special  rates. 

Sec.  22.  The  State  will  be  divided  into  three  districts  as  nearly  equal 
in  population  as  practicable,  in  each  of  which  one  Railroad  Commissioner 
shall  be  elected  by  the  qualified  electors  thereof  at  the  regiUar  gubernato- 
rial elections,  whose  salary  shall  be  fixed  by  law,  and  whose  term  of  office 
shall  be  four  years,  commencing  on  the  first  Monday  after  the  first  day 
of  January  next  succeeding  their  election.  Said  Commissioners  shall  be 
qualified  electors  of  this  State  and  of  the  district  from  which  they  are 
elected,  and  shall  not  be  interested  in  any  railroad  corporation,  or  other 
transportation  company,  as  stockholder,  creditor,  agent,  attorney,  or 
employ^  ;  and  the  act  of  a  majority  of  said  Commissioners  shall  be 
deemed  the  act  of  said  Commission.  Said  Commissioners  shall  have  the 
power,  and  it  shall  be  their  duty,  to  establish  rates  of  charges  for  the 
transportation  of  passengers  and  freight  by  railroad  or  other  transporta- 
tion companies,  and  publish  the  same  from  time  to  time,  with  such 
changes  as  they  may  make ;  to  examine  the  books,  records,  and  papers 
of  all  railroad  and  other  transportation  companies,  and  for  this  purpose 
they  shall  have  power  to  issue  subpoenas  and  all  other  necessary  process  ; 
to  hear  and  determine  complaints  against  railroad  and  other  transporta- 
tion companies,  to  send  for  i)ersous  and  papers,  to  administer  oaths,  take 


THE   CONSTITUTION   OF  CALIFORNIA  719 


testimony,  and  punish  for  contempt  of  their  orders  and  processes,  in  the 
same  manner  and  to  the  same  extent  as  Courts  of  record,  and  enforce 
their  decisions  and  correct  abuses  through  the  medium  of  the  Courts. 
Said  Commissioners  shall  prescribe  a  uniform  system  of  accounts  to  be 
kept  by  all  such  corporations  and  companies.  Any  railroad  corporation 
or  transportation  company  which  shall  fail  or  refuse  to  conform  to  such 
rates  as  shall  be  established  by  such  Commissioners,  or  shall  charge  rates 
in  excess  thereof,  or  shall  fail  to  keep  their  accounts  in  accordance  with 
the  system  prescribed  by  the  Commission,  shall  be  fined  not  exceeding 
twenty  thousand  dollars  for  each  offence  ;  and  every  oihcer,  agent,  or 
employe  of  any  such  corporation  or  company,  who  shall  demand  or 
receive  rates  in  excess  thereof,  or  who  shall  in  any  manner  violate  the 
provisions  of  this  section,  shall  be  fined  not  exceeding  five  thousand 
dollars,  or  be  imprisoned  in  the  county  jail  not  exceeding  one  year.  In 
all  controversies,  civil  or  criminal,  the  rates  of  fares  and  freights  estab- 
lished by  said  Commission  shall  be  deemed  conclusively  just  and  reason- 
able, and  in  any  action  against  such  corporation  or  company  for  damages 
sustained  by  charging  excessive  rates,  the  plaintiff,  in  addition  to  the 
actual  damage,  may,  in  the  discretion  of  the  Judge  or  jury,  recover 
exemplary  damages.  Said  Commission  shall  report  to  the  Governor, 
annually,  their  proceedings,  and  such  other  facts  as  may  be  deemed 
important.  Nothing  in  this  section  shall  prevent  individuals  from  main- 
taining actions  against  any  of  such  companies.  The  Legislature  may,  in 
addition  to  any  penalties  herein  prescribed,  enforce  this  article  by  forfeit- 
ure of  charter  or  otherwise,  and  may  confer  such  further  powers  on  the 
Commissioners  as  shall  be  necessary  to  enable  them  to  perform  the  duties 
enjoined  on  them  in  this  and  the  foregoing  section.  The  Legislature 
shall  have  power,  by  a  two-thirds  vote  of  all  the  members  elected  to  each 
house,  to  remove  any  one  or  more  of  said  Commissioners  from  office,  for 
dereliction  of  duty,  or  corruption,  or  incompetency  ;  and  whenever,  from 
any  cause,  a  vacancy  in  office  shall  occur  in  said  Commission,  the  Gov- 
ernor shall  fill  the  same  by  the  appointment  of  a  qualified  person  thereto, 
who  shall  hold  office  for  the  residue  of  the  unexpired  term,  and  until  his 
successor  shall  have  been  elected  and  qualified. 

Sec.  24.   The  Legislature  shall  pass  all  laws  necessary  for  the  enforce- 
ment of  the  provisions  of  this  article. 


ARTICLE  XIII 

REVENUE    AND    TAXATION 

Section  1.  All  property  in  the  State,  not  exempt  under  the  laws  of 
the  United  States,  shall  be  taxed  in  proportion  to  its  value,  to  be 
ascertained  as  provided  by  law.  The  word  "property,"  as  used  in  this 
article  and  section,  is  hereby  declared  to  include  moneys,  credits,  bonds, 
stocks,  dues,  franchises,  and  all  other  matters  and  things,  real,  personal, 
and  mixed,  c-apable  of  private  ownership  ;  provided,  that  growing  crops, 
property  used  exclusively  for  public  schools,  and  such  as  may  belong  to 


720  APPENDIX 


the  United  States,  this  State,  or  to  any  county  or  municipal  corporation 
within  this  State,  shall  be  exempt  from  taxation.  The  Legislature  may 
provide,  except  in  case  of  credits  secured  by  mortgage  or  trust  deed,  for 
a  reduction  from  credits  of  debts  due  bona  fide  residents  of  this  State. 

Sec.  2.  Land,  and  the  improvements  thereon,  shall  be  separately 
assessed.  Cultivated  and  uncultivated  land,  of  the  same  quality,  and 
similarly  situated,  shall  be  assessed  at  the  same  value. 

Sec.  3.  Every  tract  of  land  containing  more  than  six  hundred  and 
forty  acres,  and  which  has  been  sectionized  by  the  United  States  Govern- 
ment, shall  be  assessed,  for  the  purposes  of  taxation,  by  sections  or 
fractions  of  sections.  The  Legislature  shall  provide  by  law  for  the 
assessment,  in  small  tracts,  of  all  lands  not  sectionized  by  the  United 
States  Government. 

Sec.  4.  A  mortgage,  deed  of  trust,  contract,  or  other  obligation  by 
which  a  debt  is  secured,  shall,  for  the  purpose  of  assessment  and  taxa- 
tion, be  deemed  and  treated  as  an  interest  in  the  property  affected 
thereby.  Except  as  to  railroad  and  other  quasi-public  corporations,  in 
case  of  debt  so  secured,  the  value  of  the  property  affected  by  such 
mortgage,  deed  of  trust,  contract,  or  obligation,  less  the  value  of  such 
security,  shall  be  assessed  and  taxed  to  the  owner  of  the  property,  and 
the  value  of  such  security  shall  be  assessed  and  taxed  to  the  owner 
thereof,  in  the  county,  city,  or  district  in  which  the  property  affected 
thereby  is  situate.  The  taxes  so  levied  shall  be  a  lien  upon  the  property 
and  security,  and  may  be  paid  by  either  party  to  such  security  ;  if 
paid  by  the  owner  of  the  security,  the  tax  so  levied  upon  the  property 
affected  thereby  shall  become  a  part  of  the  debt  so  secured ;  if  the 
owner  of  the  property  shall  pay  tlie  tax  so  levied  on  such  security,  it 
shall  constitute  a  payment  thereon,  and  to  the  extent  of  such  payment, 
a  full  discharge  thereof  ;  provided^  that  if  any  such  security  or  indebted- 
ness shall  be  paid  by  such  debtor  or  debtors,  after  assessment  and  before 
the  tax  levy,  the  amount  of  such  levy  may  likewise  be  retained  by  such 
debtor  or  debtors,  and  shall  be  computed  according  to  the  tax  levy  of 
the  preceding  year. 

Sec  5.  Every  contract  hereafter  made,  by  which  a  debtor  is  obligated 
to  pay  any  tax  or  assessment  on  money  loaned,  or  on  any  mortgage,  deed 
of  trust,  or  other  lien,  shall,  as  to  any  interest  specified  therein,  and  as  to 
such  tax  or  assessment,  be  null  and  void. 

Sec.  6.  The  power  of  taxation  shall  never  be  surrendered  or  sus- 
pended by  any  grant  or  contract  to  which  the  State  shall  be  a  party. 

Sec.  7.  The  Legislature  shall  have  the  power  to  provide  by  law  for  the 
payment  of  all  taxes  on  real  property  by  instalments. 

Sec  8.  The  Legislature  shall  by  law  require  each  taxpayer  in  this 
State  to  make  and  deliver  to  the  County  Assessor,  annually,  a  statement, 
under  oath,  setting  forth  specifically  all  the  real  and  personal  property 
owned  by  .such  taxpayer,  or  in  his  possession,  or  under  his  control,  at 
twelve  o'clock  meridian  on  the  first  Monday  of  March. 

Sec  9.  A  State  Board  of  Equalization,  consisting  of  one  member 
from  each  Congressional  District  hi  this  State,  as  the  same  existed  in 


THE   CONSTITUTION   OF   CALIFORNIA  721 

eighteen  hundred  and  seventy-nine,  shall  be  elected  by  the  qualified 
electors  of  their  respective  districts,  at  the  general  election  to  be  held 
in  the  year  one  thousand  eight  hundred  and  eighty-six,  and  at  each 
gubernatorial  election  thereafter,  whose  term  of  office  shall  be  for  four 
years  ;  whose  duty  it  shall  be  to  equalize  the  valuation  of  the  taxable 
property  in  the  several  counties  of  the  State  for  the  purposes  of  taxation. 
The  Controller  of  State  shall  be  ex  officio  a  member  of  the  Board.  The 
Boards  of  Supervisors  of  the  several  counties  of  the  State  shall  constitute 
Boards  of  Equalization  for  their  respective  counties,  whose  duty  it  shall 
be  to  equalize  the  valuation  of  the  taxable  property  in  the  comity  for  the 
purpose  of  taxation  ;  pj-ovided,  such  State  and  County  Boards  of  Equal- 
ization are  hereby  authorized  and  empowered,  under  such  rules  of  notice 
as  the  County  Boards  may  prescribe  as  to  the  action  of  the  State  Board, 
to  increase  or  lower  the  entire  assessment  roll,  or  any  assessment  con- 
tained therein,  so  as  to  equalize  the  assessment  of  the  property  contained 
in  said  assessment  roll,  and  make  the  assessment  conform  to  the  true 
value  in  money  of  the  property  contained  in  said  roll ;  jyrovided,  that  no 
Board  of  Equalization  shall  raise  any  mortgage,  deed  of  trust,  contract, 
or  other  obligation  by  which  a  debt  is  secured,  money,  or  solvent  credits, 
above  its  face  value.  The  present  State  Board  of  Equalization  shall 
continue  in  office  until  their  successors,  as  herein  provided  for,  shall  be 
elected  and  shall  qualify.  The  Legislature  shall  have  power  to  redistrict 
the  State  into  four  districts,  as  nearly  equal  in  population  as  practical, 
and  to  provide  for  the  election  of  members  of  said  Board  of  Equaliza- 
tion.    [Amendment,  adopted  November  4,  1884.] 

Sec.  10.  All  property,  except  as  hereinafter  in  this  section  provided, 
shall  be  assessed  in  the  county,  city,  city  and  county,  town,  township,  or 
district  in  which  it  is  situated,  in  the  manner  prescribed  by  law.  The 
franchise,  roadway,  roadbed,  rails,  and  rolling  stock  of  all  railroads  oper- 
ated in  more  than  one  county  in  this  State  shall  be  assessed  by  the  State 
Board  of  Equalization  at  their  actual  value,  and  the  same  shall  be  appor- 
tioned to  the  counties,  cities  and  counties,  cities,  towns,  townships,  and 
districts  in  which  such  railroads  are  located,  in  proportion  to  the  number 
of  miles  of  railway  laid  in  such  counties,  cities  and  counties,  cities, 
towns,  townships,  and  districts. 

Sec.  11.  Income  taxes  may  be  assessed  to  and  collected  from  persons, 
corporations,  joint-stock  associations,  or  companies  resident  or  doing 
business  in  this  State,  or  any  one  or  more  of  them,  in  such  cases  and 
amounts  and  in  such  manner,  as  shall  be  prescribed  by  law. 

Sec.  12.  The  Legislature  shall  provide  for  the  levy  and  collection  of  an 
annual  poll  tax  of  not  less  than  two  dollars,  on  everj'  male  inhabitant  of 
this  State  over  twenty-one  and  under  sixty  years  of  age,  except  paupers, 
idiots,  insane  persons,  and  Indians  not  taxed.  Said  tax  shall  be  paid 
into  the  State  School  Fund. 

Sec.  13.  The  Legislature  shall  pass  all  laws  necessary  to  carry  out 
the  provisions  of  this  article. 

VOL.  I  3  A 


722  APPENDIX 


ARTICLE    XIV 

WATER    AND    WATER    RIGHTS 

Section  1.  The  use  of  all  water  now  appropriated,  or  that  may  here- 
after be  appropriated,  for  sale,  rental,  or  distribution,  is  hereby  declared 
to  be  a  public  use,  and  subject  to  the  regulation  and  control  of  the  State, 
in  the  manner  to  be  prescribed  by  law ;  provided,  that  the  rates  or  com- 
pensation to  be  collected  by  any  person,  company,  or  corporation  in  this 
State,  for  the  use  of  water  supplied  to  any  city  and  county,  or  city,  or 
town,  or  the  inhabitants  thereof,  shall  be  fixed,  annually,  by  the  Board 
of  Supervisors,  or  City  and  County,  or  City  or  Town  Council,  or  other 
governing  body  of  such  city  and  county,  or  city  or  town,  by  ordinance  or 
otherwise,  in  the  manner  that  other  ordinances  or  legislative  acts  or  reso- 
lutions are  passed  by  such  body,  and  shall  continue  in  force  for  one  year 
and  no  longer.  Such  ordinances  or  resolutions  shall  be  passed  in  the 
month  of  February  of  each  year,  and  take  effect  on  the  first  day  of  July 
thereafter.  Any  Board  or  body  failing  to  pass  the  necessary  ordinances 
or  resolutions  fixing  water  rates,  where  necessary,  within  such  time,  shall 
be  subject  to  peremptory  process  to  compel  action  at  the  suit  of  any  party 
interested,  and  shall  be  liable  to  such  further  processes  and  penalties  as 
the  Legislature  may  prescribe.  Any  person,  company,  or  corporation 
collecting  water  rates  in  any  city  and  county,  or  city  or  town  in  this 
State,  otherwise  than  as  so  established,  shall  forfeit  the  franchises  and 
waterworks  of  such  person,  company,  or  corporation  to  the  city  and 
county,  or  city  or  town,  where  the  same  are  collected,  for  the  public 
use. 

Sec.  2.  The  right  to  collect  rates  or  compensate  for  the  use  of  water 
supplied  to  any  county,  city  and  county,  or  town,  or  the  inhabitants 
thereof,  is  a  franchise,  and  cannot  be  exercised  except  by  authority  of 
and  in  the  manner  prescribed  by  law. 


AETICLE  XV 

HARBOUR    FRONTAGES,  ETC. 

Section  1.  The  right  of  eminent  domain  is  hereby  declared  to  exist  in 
the  State  to  all  frontages  on  the  navigable  waters  of  this  State. 

Sec.  2.  No  individual,  partnership,  or  corporation,  claiming  or  possess- 
ing the  frontage  or  tidal  lands  of  a  harbour,  bay,  inlet,  estuary,  or  other 
navigable  water  in  this  State,  shall  be  permitted  to  exclude  the  right  of 
way  to  such  water  whenever  it  is  required  for  any  public  purpose,  nor  to 
destroy  or  obstruct  the  free  navigation  of  such  water  ;  and  the  Legis- 
lature shall  enact  such  laws  as  will  give  the  most  liberal  construction  to 
this  provision  so  that  access  to  the  navigable  waters  of  this  State  shall  be 
always  attainable  for  the  people  thereof. 

Sec.  3.  All  tide  lands  within  two  miles  of  any  incorporated  city  or 


THE   CONSTITUTION   OF   CALIFOKNIA  723 

town  of  this  State  and  fronting  on  tlie  waters  of  any  liarbour,  estuary, 
bay,  or  inlet,  used  for  the  purposes  of  navigation,  shall  be  withheld  from 
grant  or  sale  to  private  persons,  partnerships,  or  corporations. 


ARTICLE   XVI 

STATE    INDEBTEDNESS 

Section  1.  The  Legislature  shall  not,  in  any  manner,  create  any  debt 
or  debts,  liability  or  liabilities,  which  shall,  singly  or  in  the  aggregate  with 
any  previous  debts  or  liabilities,  exceed  the  sum  of  three  hundred  thou- 
sand dollars,  except  in  case  of  war  to  repel  invasion  or  suppress  insurrec- 
tion, unless  the  same  shall  be  authorized  by  law  for  some  single  object  or 
work  to  be  distinctly  specified  therein,  which  law  shall  provide  ways  and 
means,  exclusive  of  loans,  for  the  payment  of  the  interest  of  such  debt  or 
liability  as  it  falls  due,  and  also  to  pay  and  discharge  the  principal  of  such 
debt  or  liability  within  twenty  years  of  the  time  of  the  contracting  thereof, 
and  shall  be  irrepealable  until  the  principal  and  interest  thereon  shall  be 
paid  and  discharged  ;  but  no  such  law  shall  take  effect  until,  at  a  general 
election,  it  shall  have  been  submitted  to  the  people  and  shall  have  re- 
ceived a  majority  of  all  the  votes  cast  for  and  against  it  at  such  election  ; 
and  all  moneys  raised  by  authority  of  such  law  shall  be  applied  only  to 
the  specific  object  therein  stated,  or  to  the  payment  of  the  debt  thereby 
created,  and  such  law  shall  be  published  in  at  least  one  newspaper  in 
each  county,  or  city  and  county,  if  one  be  published  therein,  throughout 
the  State,  for  three  months  next  preceding  the  election  at  which  it  is  sub- 
mitted to  the  people.  The  Legislature  may  at  any  time  after  the  ap- 
proval of  such  law  by  the  people,  if  no  debt  shall  have  been  conti'acted  in 
pursuance  thereof,  repeal  the  same. 


ARTICLE   XVII 

LAND    AND    HOMESTEAD    EXEMPTION 

Section  1.  The  Legislature  shall  protect,  by  law,  from  forced  sale,  a 
certain  portion  of  the  homestead  and  other  propei'ty  of  all  heads  of 
families. 

Sec.  2.  The  holding  of  large  tracts  of  land,  uncultivated  and  unim- 
proved, by  individuals  or  corporations,  is  against  the  public  interest,  and 
should  be  discouraged  by  all  means  not  inconsistent  with  the  rights  of 
private  property. 

Sec.  3.  Lands  belonging  to  this  State,  which  are  suitable  for  cultiva- 
tion, shall  be  granted  only  to  actual  settlers,  and  in  quantities  not  exceed- 
ing three  hundred  and  twenty  acres  to  each  settler,  under  such  conditions 
as  shall  be  prescribed  by  law. 


724  APPENDIX 


AKTICLE   XIX 


Section  1.  The  Legislature  shall  prescribe  all  necessary  regiilations 
for  the  protection  of  the  State,  and  the  counties,  cities,  and  towns  thereof, 
from  the  burdens  and  evils  arising  from  the  presence  of  aliens  who  are  or 
may  become  vagrants,  paupers,  mendicants,  criminals,  or  invalids  afflicted 
with  contagious  or  infectious  diseases,  and  from  aliens  otherwise  danger- 
ous or  detrimental  to  the  well-being  or  peace  of  the  State,  and  to  impose 
conditions  upon  which  such  persons  may  reside  in  the  State,  and  provide 
the  means  and  mode  of  their  removal  from  the  State,  upon  failure  and 
refusal  to  comply  with  such  conditions  ;  provided,  that  nothing  contained 
in  this  section  shall  be  construed  to  impair  or  limit  the  power  of  the  Leg- 
islature to  pass  such  police  laws  or  other  regulations  as  it  may  deem 
necessary. 

Sec.  2.  No  corporation  now  existing  or  hereafter  formed  under  the 
laws  of  this  State,  shall,  after  the  adoption  of  this  Constitution,  employ, 
directly  or  indirectly,  in  any  capacity,  any  Chinese  or  Mongolian.  The 
Legislature  shall  pass  such  laws  as  may  be  necessary  to  enforce  this 
provision. 

Sec.  o.  No  Chinese  shall  be  employed  on  any  State,  county,  municipal, 
or  other  public  work,  except  in  punishment  for  crime. 

Sec.  4.  The  presence  of  foreigners  ineligible  to  become  citizens  of  the 
United  States  is  declared  to  be  dangei'ous  to  the  well-being  of  the  State, 
and  the  Legislature  shall  discourage  their  immigration  by  all  the  means 
within  its  power.  Asiatic  coolieism.  is  a  form  of  human  slavery,  and  is 
for  ever  prohibited  in  this  State,  and  all  contracts  for  coolie  labour  shall 
be  void.  All  companies  or  corporations,  whether  formed  in  this  country 
or  any  foreign  country,  for  the  importation  of  such  labour,  shall  be  subject 
to  such  penalties  as  the  Legislature  may  prescribe.  The  Legislature  shall 
delegate  all  necessary  power  to  the  incorporated  cities  and  towns  of  this 
State  for  the  removal  of  Chinese  without  the  limits  of  such  cities  and 
towns,  or  for  their  location  within  prescribed  portions  of  those  limits,  and 
it  shall  also  provide  the  necessary  legislation  to  prohibit  the  introduction 
into  this  State  of  Chinese  after  the  adoption  of  the  Constitution.  This 
section  shall  be  enforced  by  appropriate  legislation. 


Ejstd  of  vol.  I 


WORKS    BY    THE    SAME   AUTHOR. 


Social  Institutions  of  the  United  States. 

Reprinted  from  "  The  American  Commonwealth." 
i2mo.     Cloth.     $i.oo. 


The  Holy  Roman  Empire. 

Eighth  Edition,  revised  and  enlarged.     Crown  8vo.     $i.oo. 

Library  Edition.     8vo.     $3.50. 

The  Saturday  Review  says :  "  It  exactly  supplies  a  want.  .  .  .  We  know  of 
no  writer  who  has  so  thoroughly  grasped  the  real  nature  of  the  mediaeval  empire, 
and  its  relations  alike  to  earlier  and  later  times." 


Transcaucasia  and  Ararat. 

Being  Notes  of  a  Vacation  Tour  in  the  Autumn  of  1876. 

With  Map  and  View  of  Mount  Ararat. 

Third  Edition.    Crown  8vo.    $2.50. 

The  Times  says  :  "  He  has  produced  a  very  interesting  volume,  full  of  informa- 
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Cossacks  alike  deserted  him,  we  have  a  feat  of  mountain  climbing  which  in  itself 
proves  him  to  be  no  unworthy  member  of  the  Alpine  Club.  This  alone  would 
render  the  book  well  worth  reading,  quite  apart  from  the  store  of  information  con- 
tained in  it." 

The  AthencEum  says :  "  Mr.  Bryce  has  written  a  lively  and  at  the  same  time 
instructive  description  of  the  tour  he  made  in  and  about  the  Caucasus.  When  so 
well  informed  a  jurist  travels  into  regions  seldom  visited,  and  even  walks  up  a 
mountain  so  rarely  scaled  as  Ararat,  he  is  justified  in  thinking  that  the  impressions 
he  brings  home  are  worthy  of  being  communicated  to  the  world  at  large." 


MACMILLAN   &   CO., 

112    FOURTH   AVENUE,    NEW   YORK. 
1 


HISTORY     OF     THE    NEW     WORLD    CALLED 

AMERICA. 

By    EDWARD   JOHN    PAYNE, 

Fellow  of  University  College,  Oxford. 

Vol.  I.     i2mo.     $3.00. 

"  Leads  the  student  in  a  novel  direction.  .  .  .  The  elucidation  of  the  subject 
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before."  —  iV.  Y.  Times. 

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its  learning  and  force  than  for  the  extreme  freshness  of  the  point  of  view."  —  A'.  K 
Times  (second  notice). 

"...  A  work  that  promises  to  be  of  very  unusual  interest  and  value.  Mr. 
Payne  has  taken  up  his  important  theme  in  an  original  and  suggestive  manner; 
and  he  is  in  the  way  to  arrive  at  conclusions  of  great  moment.  The  succeeding 
volumes  of  his  narrative  will  undoubtedly  be  looked  for  with  no  little  impatience." 
—  Boston  Deacon. 

"...  The  discussion  of  these  ingenious  theories  does  not  fall  within  our 
province.  We  cannot,  however,  refrain  from  commending  the  painstaking  thor- 
oughness of  the  author's  researches." —  Chicago  Tribune. 

"  We  have  before  us  the  first  instalment  of  the  most  comprehensive  and,  there- 
fore, the  most  ambitious  History  of  America  that  has  ever  been  projected.  In  a 
series  of  volumes  which,  if  we  may  judge  from  the  limited  space  covered  by  the 
book  now  issued,  will  be  a  long  one,  the  author,  Mr.  Edward  John  Payne,  a  Fellow 
of  University  College,  Oxford,  has  undertaken  to  present  a  well-ordered  and  artistic 
digest  of  the  results  of  a  scientific  study  of  the  annals  of  the  New  World  from  its 
discovery  to  the  present  day."  —  New  York  Sun  (first  notice). 

"  We  have  here  the  first  volume  of  a  history  of  this  continent  which  promises  to 
cover  a  broad  field,  and  to  be  more  unique  and  interesting  than  any  previous 
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ture and  histories  which  the  approaching  celebration  is  producing,  such  a  learned, 
dispassionate,  far-sighted  opening  volume  of  a  history  that  bids  fair  to  set  all  others 
in  the  background."  —  St.  Louis  Republican. 

"  To  the  exhaustive  scientific  and  ethnical  detail  displayed  in  this  first  volume 
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justice;  but  it  may  be  said  that  in  beauty,  dignity,  and  forcefulness  of  style  the 
book  is  extraordinary.  It  enriches  a  theme  still  unworn,  and  makes  the  pursuit  of 
it  a  pleasure  higher  than  a  pastime."  —  St.  Paul  Pioneer  Press. 


MACMILLAN   &   CO., 

112   FOURTH   AVENUE,   NEW  YORK. 
2 


Macmillan  &  CO.'S 

LIST    OF    BOOKS 

ON 

HISTORY  p.^^  POLITICAL  ECONOMY. 


ABDY  (Judge).  —  Feudalism  :  a  Series  of  Lectures  delivered  at  Gresham  College. 
By  J.  T.  Abdy,  LL.D.     i2mo.     ^2.00. 

ADAMS  and  CUNNINGHAM.— The  Swiss  Confederation.  With  Map.  8vo.  $4.00. 

ANSON.  — WORKS  BY  Sir  William  R.  Anson,  D.C.L. 
The  Law  and  Custom  of  the  Constitution.     Clarendon  Press  Series. 
Part  I.     Parliament.     8vo.     ^2.75. 
Part  II.     The  Crown.     8vo.     ^3.50. 
Principles  of  English  Law  of  Contract,  and  of  Agency  in  its  Relation  to 
Contract.     Fifth  Edition,  revised.     Clarendon  Press  Series.     8vo.    ^2.60. 

ARISTOTLE.      On  the  Athenian  Constitution.      Translated,  with  Introduction 
and  Notes,  by  F.  G.  Kenyon,  M.A.,  Fellow  of  Magdalen  College,  Oxford. 
On  handmade  paper,  bound  in  buckram.     Post  8vo.     ^i.io. 
Large-paper  Edition.     Large  i2mo.    $2-2^. 

BASTABLE.  —  Public  Finance.  By  C.  F.  Bastable,  Professor  of  Political  Econ- 
omy at  Trinity  College,  Dublin.     8vo.    ^4.00. 

"  His  treatise  on  Finance  is  exhaustive  and  far-reaching.  ...  As  a  thorough  statement 
of  the  theories  of  the  English  school  of  finance,  there  has  been  no  manual  recently  published 
that  approaches  Dr.  Bastable's  in  precision  of  definition  or  order  of  arrangement." — Co)n- 
mercial  Bulletin. 

BEDE'S  (Venerable)  Ecclesiastical  History  of  England.  Together  with  the 
Anglo-Saxon  Chronicle.  With  Illustrative  Notes,  a  Short  Life  of  Bede, 
Analysis  of  the  History,  and  an  Index  and  a  Map  of  Anglo-Saxon  England. 
Edited  by  J.  A.  GILES,  D.C.L.     ^1.50. 

BENTHAM.  —  An  Introduction  to  the  Principles  of  Morals  and  Legislation. 
Clarendon  Press  Series.     ^1.75. 
A  Fragment  on  Government.     By  Jeremy  Bentham.    Edited,  with  an  Intro- 
duction, by  F.  C.  Montague,  M.A.,  Late  Fellow  of  Oriel  College.   8vo.   ^2.00. 

BERNARD  (M.).  — Four  Lectures  on  Subjects  Connected  with  Diplomacy. 
8vo.     ^2.50. 

BIRKBECK  (W.  L.).  — Historical  Sketch  of  the  Distribution  of  Land  in  Eng- 
land.    $1.50. 

3 


BLAIR'S  Chronological  Tables,  Re\-i5ed  and  Enlarged.  Comprehending  the 
Chrc-;-:g:-  ir.d  His:ory  of  the  World,  from  the  Eailiest  Times  to  the  Russian 
Trean-  c:  Peace,  April,  i£56.  By  J.  WiLLOUGHEY  Ross.  $3.50. 
Index  of  Dates.  Coniprehending  the  Principal  Facts  in  the  Chronology  and 
Hisiorv  of  the  World,  from  the  Earliest  to  the  Present  Time,  alphabetically 
arranged  ;  being  a  complete  Index  to  Bohn's  enlarged  Edition  of  Blair's 
ChrorDlcgical  Tables.    By  J.  W.  ROSSE.    2  vols.    Each  §1.50. 

BLUNTSCHLI  (B.  H.).— The  Theory  of  the  State.  English  Translation  by 
R,  Lodge,  MJi.    New  Edition.    $3.00. 

BOHM-BAWERK.  —  Capital  and  Interest.  A  Critical  History  of  Economical 
Theory.  By  EUGE>"  V.  B-jHM-Bav.erk,  Professor  of  Political  Economy  in 
the  University  of  Innsbruck.  Transiaied,  with  a  Preface  and  Analysis,  by 
Welxiam  Smart,  Lecttirer  on  Political  Economy  in  Queen  Margaret  College, 
Glasgow.    8vo.    ^co. 

' '  We  haTe  read  tbe  vol  ume  with  increasing  interest  from  the  first  page  to  the  last.  Although 
it  consists  almost  wholly  of  destructive  criticism,  it  is  very  necessary  work.  Wc  recall 
Tvyhmg  d  tbe  kind  equal  to  it.  Even  tbougfa  be  may  not  have  said  tbe  last  word  on  the  par- 
ticnlar  snlgect  of  bis  inquiiy,  be  bas  said  enongfa  to  fix  his  place  in  tbe  front  rank  of  the  world's 
economists." — Erening  Post. 

The  Positive  Theory  of  Capital.  By  Eugen  V.  BOhm-Bawerk,  author  of 
"  Capital  and  Interest,"  etc.  Translated  by  William  Smart,  Lecturer  on 
Political  Economy  in  Queen  Maigaret  College,  Glasgow.     8vo.    $4.00. 

BOKAR  (J.I.  — Malthus  and  his  Work.     £vo.    $4.00. 

BOHD  (J.  J.).  —  A  Handy  Book  of  Rules  and  Tables  for  veri^'ing  Dates  with 
the  Christian  Era,  etc.  Giving  an  account  of  the  Chief  Elras  and  Systems  used 
by  various  Nations;  with  easy  ^lethods  for  determining  the  Corresponding 
Dates.    ^1.50. 

BOOTH.  — Life  and  Labottr  of  the  People  in  London.      Edited  by  Charles 

B-DOTH.    izmo.    4  vols.    Each  $1.50. 

VoL  I.    East  Central  and  South  London. 

Vol.  II.    Streets  and  Population  classified- 

VoL  III.    Blocks  of  Buildings,  Schools,  and  Immigration. 

VoL  IV.    East  London  Industries. 

"  A  reaOy  interesting  as  well  as  a  very  valuable  work,  and  it  is  issued  at  a  wonderfully 
low  price." — Athensvm. 

A  Picture  of  Pauperism,  A  Plcrore;  and  The  Endowment  of  Old  Age,  An 
Argumeni.    By  Ch.\RLES  BOOTH,     izmo.    §1.25. 

BOUTMY.  — The  English  Constitution.  By  E.  Boutm\-,  author  of  "  Studies  in 
Constitutional  Law."  Translated  from  the  French  by  Mrs.  Eaden.  With 
Prefece  by  Sir  FREDERICK  POLLOCK,  Bart-  izmo.  $1.75. 
Studies  in  Constitutional  Law.  France,  Elngland,  United  States.  By  Emile 
BotrrMY.  Translated  from  the  second  French  Edition  by  E.  M.  DiCEY,  wth 
an  Introduction  by  A.  V.  DiCEY.     i2mo.    $1.75. 

"  A  volume  which,  though  scarcely  more  than  a  sketch,  shows  a  singular  insight  in  avoid- 
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and  the  United  States.  M.  Bontmy,  inAet^^  deserves  to  be  named  widi  honour  as,  after 
Mr.  Brycc,  one  of  tbe  most  gag^a^^f^c  students  c£  American  institutions  now  li\"ing."  — 
Literary  World. 

4 


BOWES  (A.).  — A  Practical  Synopsis  of  English  History;  or,  A  General  Sum- 
man'  of  Dates  and  Events.  For  the  use  of  Schools.  By  ARTHUR  BoWES. 
New  Edition  (the  9th),  revised.     8vo.    30  cents. 

BRACTON'S  NOTE  BOOK.  A  Collection  of  Cases  decided  in  the  King's  Court 
during  the  Reign  of  Henry  the  Third.  Edited  by  F.  W.  Maitl.\xd.  3  vols. 
8vo.    $24.00. 

BRIGHT.  — Works  by  the  Right  Hon.  John  Bright,  M.P. 

Speeches  on  Questions  of  Public  Policy.    Edited  by  Prof.  Thorold  Rogers. 

Second  Edition.    2  vols.    8vo.    §6.00. 

Author's  Popular  Edition.     Globe  8vo.    Si. 25. 
Public  Addresses.     8vo.    32.50. 

BRIGHT  (W.  Bright,  D.D.).  — Chapters  of  Early  English  Church  History. 
Second  Edition.    8vo.    33.00. 

BRYCE.  — Works  by  James  Bryce,  M.P.,  D.C.L. 

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